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- Title
Responsabilidad por culpa patronal. Análisis de los regímenes de responsabilidad civil propuestos para su explicación.
- Authors
Gallego Soto, Cristian Mauricio
- Abstract
The article analyzes the proposed regimes of civil liability to explain employer's liability in Colombian labor law. It emphasizes that this liability has its roots in labor law and is autonomous from other fields of law. The regimes of contractual and extracontractual liability in civil law are examined, and it is argued that neither of them provides an adequate response to the theoretical-legal structure of employer's liability. It is proposed to recognize the labor and autonomous nature of this liability regime. The article analyzes the autonomy of labor law in relation to civil law in Colombia. It highlights that labor law has its own principles and norms, which demonstrate its autonomy. Additionally, it is mentioned that employer's liability in labor law has its own characteristics and is not necessarily governed by the provisions of civil law. It is concluded that labor law establishes an autonomous regime of liability in cases of employer's fault, which is not subordinate to civil law. The article analyzes the differentiating characteristics between contractual and extracontractual civil liability regimes. In the case of contractual liability, the source of the damage comes from the breach of obligations derived from a contract, while in extracontractual liability, the damage occurs outside of an agreement of wills. Additionally, in contractual liability, a tripartition of fault is established, while in extracontractual liability, one is liable for any degree of fault. They also differ in terms of standing to request compensation for damages and the extent of the compensation. Finally, it is mentioned that there are differences in the terms of prescription in some legal systems. The article analyzes the incompatibility between the regime of employer's fault liability and the duality of contractual and extracontractual civil liability regimes. It highlights that employer's fault liability cannot be considered contractual because it is not limited to the parties of the employment contract, but also includes affected third parties. Additionally, it is noted that comprehensive compensation for damages is required in the labor liability regime, unlike the contractual regime that is limited to damages that were foreseen or could have been foreseen at the time of the contract. It is also mentioned that clauses that exclude employer liability are not valid in the labor context, as they are considered ineffective due to the principle of non-waiver of minimum benefits established in labor laws. Finally, the difference in the gradation of fault between contractual and labor regimes is discussed, concluding that employer's fault is established by the failure to fulfill the obligation of protection and safety towards workers, and not by the subjective criterion of a good family father. The article discusses the nature of employer's fault liability in the labor context. It argues that this liability cannot be graded, as the failure to fulfill the obligation of safety and protection constitutes a failure in itself. Additionally, it is noted that this obligation is not of a contractual nature, but rather legal and constitutional. It is emphasized that ensuring safety at work is a fundamental right and an obligation of states, according to international treaties. In conclusion, employer's fault liability arises from the failure to fulfill the legal obligation of safety and protection established by law and the constitution. The article analyzes the difference in the burden of proof of employer's fault in the contractual and labor liability regimes in Colombia. In contractual liability, the employer's fault is presumed, while in labor liability, it is required that the fault be sufficiently proven. It is argued that the regime of employer's fault liability cannot be considered either contractual or extracontractual, as there is a pre-existing legal relationship between the employer and the worker. Additionally, it is noted that Article 216 of the Substantive Code
- Subjects
COLOMBIA; LEGAL liability; EMPLOYERS' liability; LABOR laws; CIVIL law; OBEDIENCE (Law); FORCED labor
- Publication
Revista de la Facultad de Derecho y Ciencias Políticas, 2022, Vol 52, Issue 137, p443
- ISSN
0120-3886
- Publication type
Article
- DOI
10.18566/rfdcp.v52n137.a04