Corporate Liability – Dogmatic Reconstruction of the Tortious Liability of Corporate Entities

• Applicant: Privatdozent Dr. Carsten Koenig
• Subject Area: Private Law
• Term: Funded in 2023
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 515839637

The liability of corporations and other corporate entities is one of the most controversial topics of German tort law, the central provisions of which were already formulated at the end of the 19th century and are strictly individualistic in conception. Recent tort litigation, e.g.in connection with the so-called diesel scandal, has once again illustrated the weaknesses of this approach. Against this background, I develop in my habilitation thesis a new dogmatic approach to the justification of the tortious liability of corporate bodies. To this end, I first analyse the historical development and explain the current state of corporate liability, including numerous inconsistencies that prevent its effective application. On the basis of insights from law and economics and comparative law, I then develop various approaches for a dogmatic reconstruction of corporate liability law. My starting point is the distinction between direct and indirect corporate liability. While in the case of direct corporate liability the corporation itself is the addressee of tortious duties, indirect corporate liability is based on the breach of duties directed at individual corporate managers or employees. According to my conception, direct corporate liability can be established in two ways, either through imputation of human conduct, fault, knowledge, etc., or as genuine organisational liability, where the reference point for liability is the corporation as a whole. One of my central theses is that despite the individualistic conception of §§ 823 ff. BGB, corporate liability can be structured as direct corporate liability to a far greater extent than previously assumed. In my opinion, this also applies to intentional torts, e.g. under § 826 BGB, which played a central role in the diesel cases. The expansion and increased effectiveness of direct corporate liability becomes possible not only by a consistent differentiation of duties, but also by a liability norm-based attribution approach, which I develop with the help of comparative law methods, among others. Furthermore, drawing on insights from law and economics, I deal intensively with the telos of supposedly individualistic elements of tort liability such as intent and negligence and show that – reduced to their respective core – they can also be applied to companies as organisations. To this end, I elaborate the essential elements of the objective concept of negligence and develop an objective concept of intent for civil tort law in distinction to the criminal law doctrine of intent. I then combine the different approaches into a differentiated dogmatic concept of corporate tort liability, which I believe can also serve as a model for the further unification of European tort law.

• DFG Programme: Publication Grants