불법행위법의 개정 (The Amendment of Tort Law in Korea)

서지정보

· 발행기관 : 한국민사법학회
· 수록지 정보 : 민사법학 / 60권 / 97 ~ 149페이지
· 저자명 : 엄동섭

초록

.From Mar. 2010 to Feb. 2112, the 6th Division of the Civil Law Reformation Committee of the Ministry of Justice prepared the draft for the amendment of tort law in Korea. The 6th Division composed the draft with reference to 2 previous drafts in Korea(1995, 2004), Principles of European Tort Law(PETL), Draft Common Frame of Reference(DCFR),the drafts of foreign countries(Swiss, France, Japan, China) and the Restatement of the Law of Torts. The summary of the draft is as follows. The amended parts are underlined.
1. Method of compensation: Compensation is to be awardee as a lump sum unless a good reason requires periodical payment.
2. Liability of parents for damage caused by children: Parents or other persons obliged by law to provide parental care for a person under eighteen years of age(=minor) are liable for the damage where that person under age caused the damage by conduct that would constitute intentional or negligent conduct, regardless of that person’s competency to understand the legal effect of his conduct.
3. Liability of employer for damage caused by employees: A person who employs or similarly engages another is liable for damage suffered by a third person, when the person employed or engaged caused the damage in the course of the employment or engagement, even if the employer exercised his care to prevent the damage.
4. Liability for damage caused by the unsafe state of an immovable: A person who independently exercises control over an immovable(=the possessor of an immovable) is liable for damage suffered by a third person, when the damage was caused by the unsafe state of immovable.
In addition to the possessor, the owner who does not posses the immovable is also liable for that damage. The possessor and the owner are liable for that damage jointly and severally. In this context, however, the immovable does not include a land.
5. Liability of joint tort-feasors: Joint tort-feasors are liable jointly and severally for damage suffered by third party. There are two kinds of joint tort-feasor: joint tort feasor with same intention and joint tort-feasor for same damage. A jont tort-feasor who compensate damage has right to demand a reimbursement from another joint tort-feasor according to their portion to the joint tort.
6. Defenses: In addition to Self-defense and Necessity, Self-help and Consent are newly recognized as a defense. And with regard to defamation, a person has a defense if he defamed someone in necessary protection of public interest.
7. Injunction(Right to prevention): The right to prevention exists only in so far as compensation would not be an adequate alternative remedy and it is reasonable for the person who would be liable for the causation of the damage to prevent it from occurring.

영어초록

.From Mar. 2010 to Feb. 2112, the 6th Division of the Civil Law Reformation Committee of the Ministry of Justice prepared the draft for the amendment of tort law in Korea. The 6th Division composed the draft with reference to 2 previous drafts in Korea(1995, 2004), Principles of European Tort Law(PETL), Draft Common Frame of Reference(DCFR),the drafts of foreign countries(Swiss, France, Japan, China) and the Restatement of the Law of Torts. The summary of the draft is as follows. The amended parts are underlined.
1. Method of compensation: Compensation is to be awardee as a lump sum unless a good reason requires periodical payment.
2. Liability of parents for damage caused by children: Parents or other persons obliged by law to provide parental care for a person under eighteen years of age(=minor) are liable for the damage where that person under age caused the damage by conduct that would constitute intentional or negligent conduct, regardless of that person’s competency to understand the legal effect of his conduct.
3. Liability of employer for damage caused by employees: A person who employs or similarly engages another is liable for damage suffered by a third person, when the person employed or engaged caused the damage in the course of the employment or engagement, even if the employer exercised his care to prevent the damage.
4. Liability for damage caused by the unsafe state of an immovable: A person who independently exercises control over an immovable(=the possessor of an immovable) is liable for damage suffered by a third person, when the damage was caused by the unsafe state of immovable.
In addition to the possessor, the owner who does not posses the immovable is also liable for that damage. The possessor and the owner are liable for that damage jointly and severally. In this context, however, the immovable does not include a land.
5. Liability of joint tort-feasors: Joint tort-feasors are liable jointly and severally for damage suffered by third party. There are two kinds of joint tort-feasor: joint tort feasor with same intention and joint tort-feasor for same damage. A jont tort-feasor who compensate damage has right to demand a reimbursement from another joint tort-feasor according to their portion to the joint tort.
6. Defenses: In addition to Self-defense and Necessity, Self-help and Consent are newly recognized as a defense. And with regard to defamation, a person has a defense if he defamed someone in necessary protection of public interest.
7. Injunction(Right to prevention): The right to prevention exists only in so far as compensation would not be an adequate alternative remedy and it is reasonable for the person who would be liable for the causation of the damage to prevent it from occurring.

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