미국 불법행위법상 제2차적 책임 - 증권사기⋅회사법상 신인의무 위반 및 지적재산권 침해를 중심으로 - (Secondary Liability in American Tort Law)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 61권 / 505 ~ 549페이지
· 저자명 : 이동진

초록

Until recently, civil liability for inducing or aiding and abetting another person’s tort has not attracted much attention in the Korean civil law literature. This situation is unfortunate especially because the growing number of cases involving civil liability for inducing or aiding and abetting amplifies the fear of uncontrolled extension of liability. As American tort law is one of the few regimes which differentiate inducing as well as aiding and abetting from concerted action and other forms of joint and several tortfeasors (primary liability), a look at the liability scheme of inducing or aiding and abetting in American tort law (hereafter secondary liability) seems to be promising.
In this article, the structure of secondary liability in American tort law in general as well as some selected issues on it are examined. The first two parts of this article are dedicated to comprehensive description of American secondary liability regime. After the requirement of secondary liability such as actual or constructed knowledge, substantial contribution,sliding scale test and Central Bank rule as well as the remedy for it are introduced, the most important cases dealing with it, including secondary liability for securities or common law fraud, corporate director's or lawyer's breach of fiduciary duty, infringement of intellectual property and defamation via internet are analysed. The last part of this article presents some lessons or insights of American secondary liability law for Korean tort law: the way to conceptualize secondary liability; the correlation between subjective requirements and those objective in secondary liability;the implication of Central Bank rule and other U.S. statutes dealing with secondary liability; and most of all, the policy of secondary liability.

영어초록

Until recently, civil liability for inducing or aiding and abetting another person’s tort has not attracted much attention in the Korean civil law literature. This situation is unfortunate especially because the growing number of cases involving civil liability for inducing or aiding and abetting amplifies the fear of uncontrolled extension of liability. As American tort law is one of the few regimes which differentiate inducing as well as aiding and abetting from concerted action and other forms of joint and several tortfeasors (primary liability), a look at the liability scheme of inducing or aiding and abetting in American tort law (hereafter secondary liability) seems to be promising.
In this article, the structure of secondary liability in American tort law in general as well as some selected issues on it are examined. The first two parts of this article are dedicated to comprehensive description of American secondary liability regime. After the requirement of secondary liability such as actual or constructed knowledge, substantial contribution,sliding scale test and Central Bank rule as well as the remedy for it are introduced, the most important cases dealing with it, including secondary liability for securities or common law fraud, corporate director's or lawyer's breach of fiduciary duty, infringement of intellectual property and defamation via internet are analysed. The last part of this article presents some lessons or insights of American secondary liability law for Korean tort law: the way to conceptualize secondary liability; the correlation between subjective requirements and those objective in secondary liability;the implication of Central Bank rule and other U.S. statutes dealing with secondary liability; and most of all, the policy of secondary liability.

참고자료

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