مقایسۀ کارایی نظریه‌های تقصیر و خطر با تاکید بر اقتصاد رفاه

پیچیده شدن روابط اجتماعی موجب افزایش مصادیق مسئولیت مدنی و  اهمیت یافتن این حوزه از حقوق شده است. در نظام‌های حقوقی، این نتیجه حاصل شده است که ایجاد جامعه‌ای عاری از زیان، فرضی آرمانی و غیرقابل تحقق است. بنابراین، قانونگذاران از مسئولیت مدنی به‌عنوان ابزاری برای ایجاد توازن در جامعه و برقراری عدالت استفاده می‌کنند. مفهوم عدالت می‌تواند بسیار گسترده باشد و در دیدگاه اقتصادی به حقوق، متناظر با مفهوم کارایی است. در این دیدگاه، در‌عین اینکه فعالیت افراد در بالاترین سطح سودآوری قرار دارد از وقوع زیان نیز تا حدّ امکان جلوگیری می‌شود. راهکارهای متعددی در اقتصاد برای برقراری چنین توازنی پیشنهاد شده است که در این پژوهش پس از معرفی هریک از نظریه‌ها، وضعیت نظام مسئولیت مدنی ایران بررسی می‌شود. نتیجۀ این تحقیق که به‌صورت تحلیلی-توصیفی است، نشان می‌دهد که نظام مسئولیت مدنی ایران بیش‌از آنکه افراد را به فعالیت تشویق کند بر پیشگیری تکیه دارد و استفاده از نظریه‌های خطر و تقصیر همواره در جایگاه صحیح خود به‌کار نرفته است.

comparing the efficiency of theories of fault and risk with a focus on welfare economics

philosophy of tort law is one of the most important issues in law. to determine the philosophy of tort law, several theories have been proposed, and each of the theories has its own justification. in this research, these theories are analyzed from an economic point of view to determine which theory is more efficient than other theories. examination of various theories suggests that theories of tort law can be reduced to two theories of fault and risk. in other words, in all cases of liability, the injured party must prove three things, which include loss, harmful act, and causation, but in the theory of fault, in addition to these three, the injured party must prove that the perpetrator's behavior was wrong and guilty.people in a community may be in different situations and want to make decisions in any situation. economically, people are either in the consumer position or in the producer position, and in both cases, there is a need to make efficient decisions. if all the decisions of the people are efficient, the society will be in a state of balance, but it is impossible and ideal to establish such a situation. because the competitive power of consumers and producers is not always equal, and each may gain more benefits than the other and the interests of the other party may not be efficient. the establishment of an efficient state in a society does not arise merely by the correction of individual behaviors and the legislature distributes opportunities to individuals with every law it makes. the legislature must provide opportunities for those who make more effective decisions. to identify these people, several theories have been proposed by economists. pareto, kaldor-hicks, lerner, and posner are among these theories.the pareto criterion states that a state of the world x is socially better than a state of the world y if and only if each individual considers state x at least as preferred as state y and at least one person strictly prefers x to y. it follows from this definition, of course, that, if each individual prefers x to y then x is socially better than y. the pareto criterion has a strong intuitive appeal. if everyone agrees that a state x is preferred to a state y, certainly the collective assessment must rank x more highly than y. the pareto criterion moreover appears to be weak, i.e. to impose few constraints on social choice. after all, each member of the society will only rarely rank two alternatives as every other member of the society. nevertheless, the pareto criterion has strong implications for the aggregation of individual judgments.resources are allocated in a pareto-optimal fashion if and only if any further reallocation of them can enhance the welfare of one person only at the expense of another. an allocation of resources is pareto superior to an alternative allocation if and only if no one is made worse off by the distribution and the welfare of at least one person is improved. these two conceptions of efficiency are analytically related in that a pareto-optimal distribution has no distributions.pareto is superior to it. both pareto concepts express standards for ranking or describing states of affairs. the pareto-superior criterion relates two states of affairs and says that one is an improvement over the other if at least one person's welfare improves while no one else's welfare is diminished. the optimality standard relates one distribution to all possible distributions and says in effect that no pareto improvements can be made from any pareto-optimal state. in addition, pareto-optimal distributions are pareto noncomparable; the pareto-superior standard cannot be employed to choose among them. another way of putting this last point is to say that the social choice between pareto-optimal distributions must be made on nonefficiency grounds.in practice, it is almost impossible to take any social action, such as a change in economic policy, without making at least one person worse off. even voluntary exchanges may not be pareto improving if they make third parties worse off. like pareto's superiority, kaldor-hick's efficiency is a relational property of states of affairs. one state of affairs (e') is kaldor-hicks efficient to another (e) if and only if those whose welfare increases in the move from e to e' could fully compensate those whose welfare diminishes with a net gain in welfare. under kaldor-hicks, compensation to losers is not in fact paid. were the payment transaction costless and full compensation given to the losers, kaldor-hicks distributions would be transformed into pareto-superior ones. this characteristic of kaldor-hicks has led some to refer to it as a potential pareto-superior standard.kaldor-hicks-efficient distributions do not necessarily map onto pareto-superior distributions. the failure to require compensation has the effect of making some individuals worse off and thus fails to satisfy the requirements of pareto superiority. in general, a distribution that is kaldor-hicks efficient need not be pareto optimal either. if a distribution is kaldor-hicks efficient then some individual has been made sufficiently better off so that he could - hypothetically at least - fully compensate those who have been made worse off. it does not follow that from their new relative positions the winners and losers are incapable of further mutual improvement through trade. thus a kaldor-hicks efficient allocation need neither be pareto superior nor pareto optimal though it may be either or both. using the criterion for kaldor–hicks improvement, an outcome is an improvement if those that are made better off could in principle compensate those that are made worse off, so that a pareto improving outcome could (though does not have to) be achieved. for example, a voluntary exchange that creates pollution would be a kaldor–hicks improvement if the buyers and sellers are still willing to carry out the transaction even if they have to fully compensate the injured parties of the pollution. kaldor–hicks does not require compensation actually be paid, merely that the possibility for compensation exists, and thus need not leave each at least as well off. under kaldor–hicks's efficiency, an improvement can in fact leave some people worse off. pareto-improvements require making every party involved better off (or at least none worse off). this reflects the greater flexibility and applicability of the kaldor–hicks criterion relative to the pareto criterion.lerner's theory and posner's theory emphasize the distribution of resources according to the criteria of poverty and wealth, respectively. lerner's theory is that in the distribution of resources, the poor should be considered. just as a chain with the weakest links is broken, society is declining through the weak. on the contrary, posner believes that the resources of a society should be given to those who are willing to pay more to obtain those resources. because in his opinion, these people pay more attention to resources and try to avoid wasting resources more than others, and use these resources better than others.so, if we want to summarize the result of this thesis in one sentence, we must say whenever it is possible to prevent damage in terms of the known nature of the action, the theory of fault should be used, and in other cases, the theory of risk should be used.