İdarenin Kusursuz Sorumluluğu Çerçevesinde Sosyal Risk İlkesinin Gelişimi ve Uygulanışı

Abstract

One of the indispensable features of the rule of law is the liability of the administration arising from its acts and transactions. The responsibility of the administration arising from public law, emerged with the inspiration from private law and developed with verdicts and adjudication rather than legal regulations, was initially treated on the basis of principle of the fault. The concept of service fault, which developed with the legal precedent of the French Administrative Court, could not meet the needs of society after some period. With the increasing role of the state in the social sphere and the replacement of liberal ideology with social state, the principle regarding the administration’s responsibility, even if it is not faulty, has been invoked and developed. The social risk principle used by the administrative courts in the compensation of the damages caused by the increasing terrorist incidents in the 1990s was seen as an exceptional type of faultless liability. The social risk principle, which has been widely controversial due to its lack of legal basis and the lack of causal link, the founding element of the responsibility law, has gained a legal acceptance with the enactment of Law No. 5233, that is limited to damages arising from terrorist incidents. Law No. 5233 does not cover all damages arising from social risk factors and all damages arising from terrorist acts. Within the scope of this study, the way in which the social risk principle, as a unique division of faultless liability of the administration in Turkish Law has been examined in the light of the opinions enlightened in the doctrine and judicial decisions. In addition, a framework has been drawn about the limits and scope of the responsibility of the administration in the face of losses arising from social risk factors, and recommendations for future research have been proposed.