Concerning establishment of guilt of the person in road accident

Кучма О. Л. Concerning establishment of guilt of the person in road accident. Art and Science. 2020. Vol. 1 (1). P. 61-71.

This article examines the question of who has the right to establish the guilt of the driver and liability in a traffic accident, including those registered without the police. It is established that drivers cannot establish guilt, but can only inform the insurer and the court about the circumstances and express their opinions about it. If the accident was registered without calling the police, the fault is established by the insurer, if with the call of the police, the fault of the driver is established by the court.
The article also focuses on how the driver's guilt affects his liability and the liability of his insurance company. The article considers three situations concerning persons who were injured as a result of a traffic accident and draws attention to cases of liability without fault. Because the car is a source of increased danger, so even if an innocent driver (did not have the technical ability to avoid a traffic accident and this is a reason not to prosecute the driver), the civil liability of the driver and his insurer, except in cases of intent of the victim or insurmountable forces.
The paper considers the concept of force majeure and the features of the source of increased danger, it is proposed at the legislative level to distinguish between the legal consequences of force majeure and the technical impossibility of avoiding an accident. Judicial decisions on the considered issues are analyzed.
The Law of the Republic of Estonia, which regulates the liability of the insurer of the guilty person, including the liability for damage caused by a trailer, has been studied.
Proposed changes to the legislation. In the Law of Ukraine "On Compulsory Insurance of Civil Liability of Land Vehicle Owners" to supplement paragraph 33.2 of Article 32 with the third paragraph of the following content: "accidents (distribution of fault) shall be established by the insurer (in the cases provided for in Article 41 of this Law - MTIBU)."
In the Civil Code of Ukraine to supplement part 5 of Article 1187 with the second paragraph of the following content:
"The technical capabilities of the mechanism, which is a source of increased danger, other properties of the source of increased danger, which are characterized as a source of increased danger, out of human control due to external influences that are force majeure, are not considered force majeure."