Liao, M C; Hsieh, T Y and Wang, W H (2024) Management of gross negligence manslaughter liability construction for professionals and lessons learned. Engineering, Construction and Architectural Management, 31(12), pp. 4942-4954. ISSN 0969-9988
Abstract
Purpose: By inspecting the special connection between negligence and the causes of negligence, this study evaluates the reasonableness of negligence offenses elements from the perspectives of "modes" and "rules." This study considers that in the core concept of negligent manslaughter in the Criminal Code of Taiwan, "business" comprises an outstretched legal element; thus, "application by analogy" or "customary laws" should be prohibited as a legal basis or when applying the criminal code because those are not allowed under nulla poena sine lege. Nulla poena sine lege must be respected to release construction professionals from material risks in their judicial rights and interests. Design/methodology/approach: This study used data mining analysis with a database of 204 cases where construction professionals were involved in an accusation of gross negligence manslaughter (GNM) (N = 486) between 1995 and 2021 to explore the reasons and distribution of these cases in the construction industry in Taiwan. Findings: The results showed that the main reasons behind lawful GNM accusations against construction professionals are as follows: (1) the violation of employers' duty of care to prevent hazards caused in workplaces where falling and collapsing are concerns during construction, thus resulting in death; (2) gross negligence during design, construction and supervision, causing damages after natural disasters such as earthquakes and typhoons. Research limitations/implications: This study discusses the whole life circle of construction, starting from planning, design, construction and completion. However, the involvement of other offenses such as providing false statements, forgery, embezzlement, unjust enrichment and fraudulent tax evasion or criminal responsibilities stipulated in the Building Act or administrative punishments are beyond the scope of this study. Future studies will focus on foreign "business GNM" cases from judicial precedents with similar backgrounds to Taiwan in the construction industry to verify whether similar conclusions can be drawn and to examine their differences. Practical implications: This study applied data mining and data analysis to the data and explored potential causality and patterns of GNM cases in judicial cases. The results of the analyses can be used as evidence for potential causality and thus facilitate construction professionals' self-reflection and contribute to the sustainable development of working environments for construction. Social implications: This study agrees with the removal of GNM titled "business" in the Criminal Code of Taiwan to achieve Sustainable Development Goals (SDGs) in the building industry. By doing so, national judicial and management systems will be in line with international standards, ensuring that everyone has equal access to justice. Originality/value: Goal 16 of the SDGs by the United Nations aims to promote judicial equality, peace, justice and strong institutions. With this basis, this study collected and analyzed data in the field of criminal law and applied the theory of criminal offenses committed by negligence to real construction-related cases. This study especially discusses whether construction professionals were imposed with excessive responsibilities when a court enforced the "duty of care" that asked the professionals to bear the responsibility of results for events that should be and could be foreseen.
| Item Type: | Article |
|---|---|
| Uncontrolled Keywords: | case study; constructions education; decision support systems; risk management |
| Index terms: | lessons learned, management system, constructions education, earthquake, reflection, data analysis, data mining, liability, risk management, duty, material risk, natural disaster, supervision, construction professional, sustainable development, sustainable development goal, damages, evidence, construction industry, building industry, violation, Taiwan, future study, United Nations, negligence, justice, case study, decision support, methodology, database |
| Subjects: | decision analysis, industry analysis, data management, research design and methodology, curriculum design, control systems, contractual role, research methods, legal systems, Geography, data science, data analysis and analytics, professional development, data collection methods, financial risk, regulatory law, management, liability law, health safety and environment, sustainable design, institutional frameworks, evaluation and assessment methods, risk assessment, dispute resolution, environmental hazards |
| Topics: | Risk Management, Sustainability, Health and Safety, Project Management, Research Practice, Legal Issues, Organizational Design, Digital Applications, Contract Administration, Governance, Cost Management, Education, Geographical Context, Information Management |
| Descriptive scope: | 5 PCTEA |
N.B. Descriptive scope is a count of how many of the five facets of empirical research are indicated by the words used in title, abstract and keywords. It is not intended as a judgement on the research; merely a count of the kind of word we would expect to indicate Phenomenon, Concepts, Theoretical framing, Empirical techniques, Analytical techniques. If all five are present, then a code of “5 PCTEA” will indicate this. If you feel the coding for this record is questionable, we welcome discussion around the terms we matched or the way we categorized them. The facet you would expect may not be coded, or a facet may be coded inappropriately. This can also bear on a larger question, of which facets should be treated as defining in construction management research. Please get in touch, and we will look at it. More details here