Las responsabilidades en materia de prevención de riesgos laborales y su perspectiva desde la doctrina judicial

Resumo

The different responsibilities in the field of prevention of occupational risks are an issue that has traditionally been treated by the scientific doctrine. Its full validity and topicality is justified, among many other reasons, in the increase in accidents Spain, and in the approach from the perspective of judicial doctrine, much needed after the regulatory change in reference to the competent jurisdiction. With the aim of catalogue and structure judicial positions and to help clarify the excessive complexity that entails a system of responsibilities. This is because the same damages that can be framed in the area of labour law and in the area of social security and entails different responsibilities from other fields of law. For the study and analysis of the subject, the methodology used is the one commonly used in the legal sciences, based on the analysis of the sources of law. In this case, the study is of high complexity because safety and hygiene at work is a multidisciplinary topic, which falls within several areas of law with different principles and purposes. The regulation of these principles and purposes is carried out through rules of very different rank and even through so-called blank rules. This research work is structured in two parts, five and three chapters respectively. In Chapter I, we analyse the normative sources of occupational risk prevention and their background, with special reference to the figure of the employer, as well as that of other subjects who can also be considered responsible in this area highlighting the character and purpose of the various responsibilities, without prejudice to their further development. Chapter II approaches administrative responsibility for the prevention of occupational risks, regulatory history and its current regulation, its legal nature and purpose, responsible subjects, principles of the sanctioning power and its infringement and sanctions regime and the sanctioning procedure. Chapter III studies criminal responsibility for the prevention of occupational risks, their regulatory history and their current regulation. It also studies criminal types in occupational safety and health: protected legal property, its legal nature and purpose; active and passive persons, including the liability of legal persons (special reference to compliance programs); elements of type and penalty, insolvency problems and the compatibility of criminal liability with other types of responsibilities. Chapter IV is dedicated to the study of civil or financial responsibility in the field of occupational safety and health, with reference to the applicable regulations; responsible subjects; causes of exoneration; damage; assurance; compatibility of civil liability with other responsibilities; competent jurisdiction, actions that may be exercised in the context of civil liability and accumulation of actions and processes, as well as the limitation of shares; and finally, the principles of European civil liability law are analysed. And finally, in Chapter V, we analyse the surcharge of economic benefits for the omission of occupational safety and hygiene measures in the event of an occupational accident and illness is considered. We detail the origin and evolution of this institution, its legal nature and its purpose; applicability budgets; administrative procedure for the imposition and determination of its percentage; prohibition of surcharge assurance, compatibility of responsibilities, and its transmissibility. The second part of the work, which is divided into three chapters, approaches the analysis of judicial doctrine on the different responsibilities that the prevention of occupational hazards arises, but leaving out the criminal responsibility for not belonging to the same jurisdiction of the social court order. This study is limited to administrative, civil or financial liability and the surcharge of Social Security benefits. Chapter VI discusses about administrative responsibility for the prevention of occupational hazards through judicial doctrine and analyses the principles of Sanctioning Administrative Law that offer greater relevance from the point of view of serious and very serious violations and administrative sanctions (graduation criteria) and, finally, problems in relation to solidarity liability. Chapter VII rewiews civil or financial responsibility for the prevention of occupational hazards, which examines the most significant and relevant issues that have been the subject of these competing pronouncements in the current order of social jurisdiction, not without discrepancies; updating the criteria on contractual and non-contractual liability; its basic elements (culpable imputation, causality relationship and breakdown thereof and exoneration of liability; compensation and quantification; concepts that may be offset; solidarity responsibility; risk assurance; default interest; limitation of the action brought and the transmissibility of the indemnification obligation. This second part ends with Chapter VIII dealing with the surcharge of Social Security benefits in the prevention of occupational risks through judicial doctrine. This one analyses its legal nature and transmissibility, possibility of assuring the same or date of economic effects of that one; basic elements required for the imposition of the surcharge; causal link and its breakdown thereof (special consideration of the worker's reckless recklessness); criteria for percentage graduation; limitation of the action for its imposition; and the solidarity responsibility of the companies involved in the production of the accident at work or occupational disease. This research work concludes with a number of proposals aiming to contribute to future legislative changes or jurisprudential concretes that provide greater legal certainty, as well as to assist in the fight against occupational accidents.