Economic analysis of the bodily damages supply Fund in the light of "Efficiency" and "Cost-Benefit" principles

Document Type : Scientific research

Authors

• hamid afkar ¹
• M abedi ²

¹ ferdowsi university of mashhad - Judge

² Department of law, Faculty of law and political sciences ,Ferdowsi university of Mashhad, Mashhad , Iran

https://doi.org/10.22067/economlaw.2023.78149.1207

Abstract

Objective: The bodily damages supply Fund has been established to protect the victims of vehicle accidents in order to be responsible for compensating the bodily injuries of the victims together with the insurance institution. Although several legal and jurisprudential principles justify the need to establish this fund, but maintaining the fund's position in society based on jurisprudential and legal criteria is not enough and examining the economic efficiency and desirability of the establishment strengthens its social foundation; Therefore, in this study, an attempt is made to assess the efficiency of the bodily damages supply Fund from the perspective of economic analysis of law and its economic justification.

Research Method: The present research method is analytical and descriptive.

Findings: Adopting new financing methods of compensation requires the establishment of legal institutions based on economic analysis studies. The economic analysis of a legal entity means the use of economic tools and ideas in the process of legal analysis to inject economic data into the body of the legal system to maintain the dynamism and desirability of the institution. Planning the operation of the bodily damages supply Fund in the form of the cost-benefit principle and various efficiency criteria justifies the need for the survival of the institution and increase social welfare and the evaluation of the function of the bodily damages supply Fund in the light of economic theories leads to the strengthening of the foundation of the fund based on the economic analysis of rights.

Conclusion: The benefit of having social security and removing the feeling of dissatisfaction resulting from the violation of the security duty of the government covers the cost of establishing the fund based on the cost-benefit principle. Although it is difficult to match the efficiency of the fund with the Pareto efficiency criterion, the difficulty of justifying most of the social and legal institutions with the said criterion makes the lack of economic efficiency of the fund negligible, based on the said criterion. Identifying the economic optimality of a legal entity based on the Caldor-Hicks criterion requires a comparison of efficiency in the assumption of the existence or absence of that entity and the superiority of its benefits. Placing the bodily damages supply Fund in the format of utilitarianism theory instills a feeling of pleasure more than pain and suffering to the society, and despite the apparent conflict of the efficiency of this institution with the Posner criterion, the possibility of quick recovery of economic power and achieving a sense of social security is a great help to maximize social wealth. Doing public duty arising from the thinking of distributive justice in compensating damages and providing the basis for social growth and excellence resulting from the good governance of the welfare state also justifies not only the role and position of the bodily injury fund in compensating for traffic accidents, but also strengthens the idea of expanding compensation funds in non-traffic accidents.

Keywords

• Bodily damages supply Fund
• Economic Analysis
• Economic Efficiency Bodily Injury Fund
• Social Welfare Theory
• Wealth Maximization

References

 

References

[1] A group of authors. (2017). Encyclopedia of Public Law, Tehran: Imam Sadegh (AS) University Publication. (In Persian).

[2] Abhari, Hamid; Ghorbani Jooybari, Mohammad. (2021). The Obligations and Rights of Bodily Damages Supply Fund in Iran Legal System. Tehran: Majd Publication. (In Persian).

[3] Abhari, Hamid; Ghorbani Jooybari, Mohammad. (2018). “Responsibility of Bodily Injury Indemnity Fund for Physical Damages to the Negligent Driver”. Insurance Research Journal, 33(132). 101 -120. (In Persian).

[4] Afkar, Hamid; Khodabakhshi, Abdollah; Seidzadeh Sani, Seyed Mehdi. (2020). “Identify the liability of the insurer in the criminal process”, Insurance Research Journal, 35(137), 215-242. (In Persian).

 [5] Arli Çil, Dilek (2021). “The Critique of Mill's Utilitarianism Concerning Virtue”. Humanitas - Uluslararası Sosyal Bilimler Dergisi.9(17), 45-58.

[6] Babaei, Iraj. (2007). “Theoretical foundations of the approach of economic analysis of rights”. Research of Law and Politics Journal. 9(23). 13-60. (In Persian).

[7] Badini, Hasan. (2003). “Philosophical foundations of the economic approach to law”. Journal of Faculty of Law and Political Sciences. 62(512). 91-135. (In Persian).

[8] Baujard, Antoinette. (2013). Utilitarianism and Anti-Utilitarianism. GATE Working Paper. No. 1332, Available at SSRN: https://ssrn.com/abstract=2357441 or http://dx.doi.org/10.2139/ssrn.2357441.

[9] Bostani, Mostafa; Malekpoor, Alireza. (2012). “Critical Analysis of Kaldor-Hicks Efficiency Criterion, with Respect to Moral Values”. Social Policy Making and Incoherence. Advances in Environmental Biology. 6(7), 2032 – 2038. (In Persian).

[10] De Rus, Ginés. (2021). Introduction to Cost-Benefit Analysis: Looking for Reasonable Shortcuts. Spain: Edward Elgar.

[11] Devadasan, Pradeep. (2018). The Utilitarian Theory of Law-An Analysis. Quality in Higher Education Chalenges & Opportunities Conference.

[12] Dmitrievna Khokhlova, Alina. (2021). Application of V. Pareto’s economic efficiency criterion in Russian judicial practice. RUDN Conference on Legal Theory, Methodology and Regulatory Practice.

[13] Dinwiddy, Caroline; Teal, Francis. (1996). Principles of Cost-Benefit Analysis for Developing Countries. England: Cambridge University Press.

[14] Eskandari, Mohammadreza; NickSirat far, Mozhgan; Saberinia, Zakariya; Golshahi, Mohammad Mahdi. (2018). “Examining the Role of Stress and Anxiety in Driver's Behavior”. Traffic Management Studies. 13(48). 129 -143. (In Persian).

[15] Gayer, Gabrielle; Gilboa, Itzhak; Samuelson, Larry; Schmeidler, David. (2014). “Pareto Efficiency with Different Beliefs”.  The Journal of Legal Studies. 43(2), 151–171.

[16] Hosseinzadeh, Javad; Doozdoozani, Khadijeh. (2013). “Basics and obligations of the Bodily Damages Supply Fund”. Private Law Thoughts Journal. 1(1). 61- 92. (In Persian).

[17] Javaherkalam, Mohammad Hadi. (2022). Basics and principles of bodily injury compensation. Tehran: Enteshar Publication. (In Persian).

[18] Kaplow, Louis; Shavell, Steven. (2001) Fairness versus Welfare. Harvard Law Review. 114(4), 961-1388.

[19] Jones, Thomas; Felps, Will. (2013). Shareholder Wealth Maximization and Social Welfare: A Utilitarian Critique. Business Ethics Quarterly. 23(2), 207-238.

[20] Khodabakhshi, Abdollah. (2010). Compensation of workers in the civil liability system. Tehran: Enteshar Publication. (In Persian).

[21] Mirzaei, Hossein; Pashazadeh Behnami, Leila. (2017). “Cost - Benefit Analysis of Higher Education in the Humanities”. Strategic and Macro Policy Journal. 5(17). 1-25. (In Persian).

[22] Moloodi, Mohammad; Haji Azizi, Bijan; Gholami, Nagin. (2018). “Economic Basis of Loss Distribution in Tort Law”. Legal Studies. 10(29). 227-258. (In Persian).

[23] Munzer, Stephen. (1990). A Theory of Property. England: Cambridge University Press.

[24] Popa, Florin. (2007). Pareto efficiency and equitable allocations of resources. Romanian Journal of Economic Forecasting. 10(23), 73 – 79.

[25] Posner, Richard. (1985). Wealth Maximization Revisited”. Notre Dame Journal of Law, Ethics and Public Policy. Vol 2, 85 – 105.

[26] Rejda, George. (2000). Principle of Risk Management and Insurance. America: Addison Wesley Publishing Company.

[27] Ridic, Goran; Ridic, Ognjen. (2018). Kaldor-Hicks and Pareto Efficiency in the Age of Global Disruption. Fourth FBA International Social Sciences Conference At: International University of Sarajevo.

[28] Sadeghi, Mohsen; Aghajani, Zahra. (2012). “The Economic Philosophy of Right to Replacement and Right to Retraction of Detective Goods and Their Position in Iranian Law”. Private Law Studies Journal. 42(1). 181 -200. (In Persian).

[29] Safaei, Seyed Hossein; Orak Bakhtiyari, Hassan Ali. (2014). The Basis of the Liability of the Car Accident Insurer in Comparison with English Law, Comparative Law Journal, 10(101), 67-88. (In Persian).

[30] Scarre, Geoffrey. (2002). Utilitarianism. New York: Routledge.

[31] Sharma, Sankalp; Giri, Anil; Haque, Tajamul; Tetteh, Iuliia. (2018). Land Acquisition in India: A Pareto and Kaldor-Hicks Perspective. Land. 7(2), 1-12.

[32] Shavell, Steven. (2003). Welfare Economics, Morality, and the Law. MA Paper of Harvard Law School Cambridge, Available at http://dx.doi.org/10.2139/ssrn.391041.

[33] Smart, J. J. C; Williams, Bernard. (1973). Utilitarianism: For and Against. United States of America: Cambridge University Press.

[34] Weitzel, Tim. (2004). Economics of Standards in Information Networks. Frankfurt: Physica-Heidelberg.

[35] Yazdaniyan, Alireza. (2016). General rules of civil liability with a comparative study in French law, Tehran: Mizan Publication. (In Persian).

[36] Yazdaniyan, Alireza. (2016(A)). State civil liability arising from acts of terrorism in the compensation of forgotten victims of terrorism in the law of Iran and France. Private Law Studies. 46(3). 475-494. (In Persian).

[37] Zafar Daher, Hafiz. (2018). Utilitarianism theory according to Bentham and Stuart Mill. International Journal for Empirical Education and Research. pp 17 – 26. DOI: 10.35935/edr/25.2617.

[38] Zahedi Asl, Mohammad. (2011). Basics of social welfare. Tehran: Publications of Allameh Tabatabaei University. (In Persian).