المسؤولية التقصيرية عن خطأ الإمتناع في التشريع الجزائري

Abstract

The subject of this research is the liability in tort with failing the duty to rescue, it was known by all Semitic religions as well as the ancient and modern Positive laws, despite all that, it remains a subject of concern from what it causes of issues, and was able to keep up with the development that has occurred in communities at all levels, due to being linked to the daily life of individuals, i.e. the human behavior that appears into the outside world, whether it is in a positive way which is the act, movement or physical activity, or in a negative way which is stillness and immobility and stopping from working altogether. Failing the duty to rescue is characterized with permanency and globalism, the extent of sedentarization of communities, and the extent of their law and behavioral conservation, the solutions vary in their wideness or narrowness depending in the prevailing tendencies in a given era and with a given community, which affects the legislature-will, so that their position toward failing the duty to rescue will change in the application of its space and vastness depending on those tendencies, the main problematic concerning the failing of the duty to rescue is whether it is tolerated to question a person on the sole fact of his restrain and negative attitude? There was a controversial jurisprudence between those in favor of the traditional jurisprudence and the modern one. The traditional jurisprudence believes that the human is originally free, and posses the right to restrain in the duty to rescue and rely on negativity as long as there is no legislature obligation that imposes doing a certain act, which its violation will lead to failing the duty to rescue and a questioning, whereas those in favor of the modern way believes that the duty to act does not require it to be imposed by the legislation but is sufficient for it to be stipulated in any of the official backup sources in law, such as philanthropy, the principles of justice…etc. Which authorizes the judge in case of absence of legislative texts to extract the legal obligation using those sources and avoid himself any crime of justice challenging, and thanks to this modern jurisprudential and legal diligence the Algerian legislator solved this controversy by stipulating in the first article of the Civil code on resorting to the backup sources of law in case of absence of the legislative texts imposing the legal obligation to act. But in case of absence of the legal texts in general that imposes a certain action; does that mean the guilty restraining from accomplishing the duty to rescue will escape from any sanction? Jurisprudence and jurisdiction reached a new legal foundation for the responsibility of the restrainer which consists in the arbitrariness for the use of the duty to rescue so that the absence of legal duty won’t be a pretext for individuals to evade the responsibility for failing the duty to rescue. The legislator approves what was concluded by Jurisprudence and jurisdiction in this regard. And with recognizing that failing the duty to rescue will be a source of liability in tort with the same importance as the positive fault, jurisprudence tried to omit the responsibility of the refrained from the duty to rescue with the pretext of lack of ability to cause an unfavorable outcome and to deny any causality that he may have induced. However another jurisprudential orientation appeared acknowledging the potential causality of failing the duty to rescue, thanks to it no one doubts the validity of failing the duty to rescue and its capacity to arrange the responsibility which made the modern positive legislatures assert the mentioned causality in its texts without hesitation and without disregarding a dissension for any controversial in this regard.

Failing the duty to rescue includes multiple areas, the most important is the issue of helping endangered others which is expanding day after day, whereas the traditional jurisprudence with the jurisdiction assistance refute the responsibility of the person refraining from helping others with the pretext of such action being solely a moral obligation which does not reach the rank of legal duty; nevertheless the different legislations resolved this issue by criminalizing the fact of restraining on providing assistance in the penal laws with different degrees, which concludes the extension of the civil liability, and the Algerian legislator rushed to stipulate on the obligation of assistance in the penal code with its article 182 this clearly highlights the extent of concern regarding failing the duty to rescue with care from the legislator: the danger of this kind of behavior in the community which leads to selfishness and isolationism and the lack of effective participation leading to the fragmentation of the community entity omitting all sense of brotherhood and solidarity between individuals. We cannot deny the effort of the different legislations to face the problem of restraining from the duty to rescue, and among them the Algerian legislation which needs to persists in imposing positive duties to act due to it being in urgent need to be prevented, without the negativity of individuals in the community and without fear of prejudice to the individual freedom relying on the balance between the legitimate endangered interests and the danger that threatens the intervener.