Readers, you need to know that all of the things committed by subordinate are all being commanded and lead by the supreme order. I will prove to you in this post, on how this individual actually doesn’t have the intention to commit such kind of crime and they couldn’t prevent it to be happen under the ground.
So what do I need to discuss in this post?
Firstly, I am going to highlight the urgency of accepting vicarious liability in military court like in the status quo because this provide mechanism for all soldier to speak up against the dictatorship. We’re supposed to accept this scenario : that whenever a soldier called to the trial and trying to defends it using this term, it is going to be acceptable. I’d like to ensure that those people are protected from any unfair justice system that will likely to be happened during court process against the soldier. I’d like to ensure that leaders are really wrong by conducting full investigation toward all the soldiers in order to invite a communal evaluation for every soldier and to prove who should held responsible for all of actions happened during the war.
Before we engage in further disussion, let us discuss the definition of vicarious liability itself.
What is Vicarious Liability?
Vicarious liability refers to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that they took place in the course of their employment.
According to Cambridge Law Press Journal, The doctrine of vicarious liability lies at the heart of all common law systems of tort law. It represents not a tort, but a rule of responsibility which renders the defendant liable for the torts committed by another. The classic example is that of employer and employee: the employer is rendered strictly liable for the torts of his employees, provided that they are committed in the course of the tortfeasor’s employment. In such circumstances, liability is imposed on the employer, not because of his own wrongful act, but due to his relationship with the tortfeasor
The key question of any case of vicarious liability is whether the sub ordinate was acting in a personal capacity, or in the course of their employment. This can often be difficult to determine. Nor does an employer’s liability end once the employee leaves the organization – as the law stands, action can still be taken against an employer even though the person in question no longer works for them.
Thus, vicarious liability requires two elements: (1) the right and ability to supervise or control the infringing activity; and (2) a direct financial benefit from that activity. It is closely related to the doctrines of enterprise liability and respondent superior in tort law.
In Indonesia’s legal realm, this so called vicarious liability is not an unfamiliar concept, as it has regulated for more than a hundred of years in our civil code. Article 1367 state as follow:
“An individual shall be responsible for the damage which he has caused by his own act, as well as for that which was caused by the acts of the individuals for whom he is responsible, or caused by matters which are under his supervision. (S.27-31 jis. 390, 421) Parents or guardians shall be responsible for the damage caused by minor children who live with them and over whom they exercise parental authority or guardianship. Employers and those who have been assigned to manage affairs of other individuals shall be responsible for the damage caused by their servants and subordinates in the course of duties assigned to them. Teachers and work supervisor shall be responsible for the damage caused by their students and apprentices, during the period that they are under their supervision. (S.27-31 jis. 390, 421) The above-mentioned responsibility shall cease, if the parents, guardians, school teachers and work supervisor can prove that the act, for which they could be held responsible, could not have been prevented.