중국 불법행위의 책임귀속원칙에 관한 연구－불법행위책임법(2009년)의 내용을 중심으로－ (A Study on the Liability Imputation Principle in Tort Liability Act of China(2009) (关于中华人民共和国侵权责任法(2009年)当中归责原则的研究))

서지정보

· 발행기관 : 한중법학회
· 수록지 정보 : 중국법연구 / 14권 / 7 ~ 64페이지
· 저자명 : 김성수

초록

The purpose of this study is to survey the principle of liability imputation in the Tort Liability Act of China, passed on december 26, 2009, which takes effect on July 1, 2010(hereafter, the Tort Act).
To begin with, we introduce the discussion about the various views about the principle of liability imputation, with a brief survey of its provisions. In general, liability with fault and the non-fault based liability are admitted as principle of liability imputation. Nevertheless, the presumption of fault liability and the equitable liability are still in the dispute, even after the tort act is enacted.
The present tort act has some articles about this issue, in its general part.
According to them, if any person, through his own fault, infringes on other people’s civil rights and interests, he shall assume the tort liability(article 6,paragraph 1). This defines the liability with fault, which is totally same with the General Principles of the Civil Law of the people’s Republic of China(1986)(hereafter, the GPCL)(article 106, paragraph 2). If the person is presumed to be at fault according to the law, and he is unable to prove that he is not at fault, then he shall assume the tort liability(article 6,paragraph 2), which is regulated in the same article, and treats it as the presumption of fault liability and was newly added into the tort act.
Third, about the non-fault based liability, if any person infringes on other people’s civil rights and interests, and any legal provision specifies that he shall assume the tort liability, such provision shall govern, whether such person is at fault or not at fault(article 7). It has come from the GPCL (article 106, paragraph 3).
Finally, the equitable liability is defined: if both the victim and the person who commits the act are free of any fault with respect to the occurrence of damages, the two parties may share the loss in light of the actual situation(article 24). It is recognized as one of the methods of assuming liability(the latter half of chapter 2), on the other hand, another 3are all defined as one of the constitution of liability(the former half of chapter 2).
Next, we move to the specific part of the tort act, examine every special torts, what principle they take in some detail and the dispute, mainly between the liability with fault and the non-fault based liability, for example, product liability, motor vehicle accident liability, internet service provider liability, medical malpractice, environmental pollution liability,liability for ultra-hazardous activity and liability for damage caused by animals or by objects. It also recognizes the coexistence of the 2 or 3principles of Liability Imputation in one special tort. In contrast, formerly only one principles is given in a special tort, so diversity and flexibility is also one of key features of the new act.
Taken together, this study shows that the present tort act is mainly based on existing provisions, such as the general Principles of the Civil Law etc and some judicial interpretations of the supreme court. But some new principles are also created. Seen in this perspective, the tradition and new creation are simultaneously pursued.
Compared to the Korean Civil Code, which defines only the fault liability the default rule of the liability(article 750) and the presumption of fault as its exception in the several provisons, not in general part, this study offers a new approach and more contents, which are very suggestive for us preparing the reform of our code civil since 2009.

영어초록

The purpose of this study is to survey the principle of liability imputation in the Tort Liability Act of China, passed on december 26, 2009, which takes effect on July 1, 2010(hereafter, the Tort Act).
To begin with, we introduce the discussion about the various views about the principle of liability imputation, with a brief survey of its provisions. In general, liability with fault and the non-fault based liability are admitted as principle of liability imputation. Nevertheless, the presumption of fault liability and the equitable liability are still in the dispute, even after the tort act is enacted.
The present tort act has some articles about this issue, in its general part.
According to them, if any person, through his own fault, infringes on other people’s civil rights and interests, he shall assume the tort liability(article 6,paragraph 1). This defines the liability with fault, which is totally same with the General Principles of the Civil Law of the people’s Republic of China(1986)(hereafter, the GPCL)(article 106, paragraph 2). If the person is presumed to be at fault according to the law, and he is unable to prove that he is not at fault, then he shall assume the tort liability(article 6,paragraph 2), which is regulated in the same article, and treats it as the presumption of fault liability and was newly added into the tort act.
Third, about the non-fault based liability, if any person infringes on other people’s civil rights and interests, and any legal provision specifies that he shall assume the tort liability, such provision shall govern, whether such person is at fault or not at fault(article 7). It has come from the GPCL (article 106, paragraph 3).
Finally, the equitable liability is defined: if both the victim and the person who commits the act are free of any fault with respect to the occurrence of damages, the two parties may share the loss in light of the actual situation(article 24). It is recognized as one of the methods of assuming liability(the latter half of chapter 2), on the other hand, another 3are all defined as one of the constitution of liability(the former half of chapter 2).
Next, we move to the specific part of the tort act, examine every special torts, what principle they take in some detail and the dispute, mainly between the liability with fault and the non-fault based liability, for example, product liability, motor vehicle accident liability, internet service provider liability, medical malpractice, environmental pollution liability,liability for ultra-hazardous activity and liability for damage caused by animals or by objects. It also recognizes the coexistence of the 2 or 3principles of Liability Imputation in one special tort. In contrast, formerly only one principles is given in a special tort, so diversity and flexibility is also one of key features of the new act.
Taken together, this study shows that the present tort act is mainly based on existing provisions, such as the general Principles of the Civil Law etc and some judicial interpretations of the supreme court. But some new principles are also created. Seen in this perspective, the tradition and new creation are simultaneously pursued.
Compared to the Korean Civil Code, which defines only the fault liability the default rule of the liability(article 750) and the presumption of fault as its exception in the several provisons, not in general part, this study offers a new approach and more contents, which are very suggestive for us preparing the reform of our code civil since 2009.

참고자료

· 없음