自動車損害賠償保障法上의 運行 規定에 관한 硏究 (A Study on the Clause of Operating the Automobile in Automobile Liability Security Law)

서지정보

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· 저자명 : 이병석

초록

This research analyzed the ‘operation’ regulation content of Article 2 no.2 of Automobile Liability Security Law (hereinafter ‘ALSA’) which was revised·enforced since July 1, 1999. As the research result, it was concluded that this regulation cannot be valid by the revision of only itself.
The reasons are ①‘Operation’ on the ALSA is a common noun as the preconceived idea formed·established by the case law for a long time, the concept may promote concept extension through the interpretation according to period demand or social necessity, however new definition by legislation cannot be accepted easily if it’s not the case of defect in regulation or problem in application. ②Automobile operator's liability belongs to the existence of the element, operating control(and operating profit), the factor was generated by ‘using’ that dangerous article, automobile, even if the concept ‘operation’ is revised, the range of automobile operator’s liability will not be affected at all as far as the standard in the case law is not changed, which reverts automobile operator's liability. And ③If it says that using automobile is operation and maintenance of it is also operation, automobile is always operating as far as it is not scrapped. Therefore, if the automobile operator concept can be changed according to operation concept as the legislator's idea, automobile operator cannot be free from maintenance responsibility, even though the automobile operator proves that he and the driver did not neglect the operating of the automobile, or proves that the third party besides the victim or the driver was intentional·culpable.
Therefore, current operation regulation must be restored quickly to the previous drive regulation, if automobile operator concept cannot be changed in accordance with the purpose of current operation regulation or if abolition of the article in ALSA clause 3 cannot be taken step.

영어초록

This research analyzed the ‘operation’ regulation content of Article 2 no.2 of Automobile Liability Security Law (hereinafter ‘ALSA’) which was revised·enforced since July 1, 1999. As the research result, it was concluded that this regulation cannot be valid by the revision of only itself.
The reasons are ①‘Operation’ on the ALSA is a common noun as the preconceived idea formed·established by the case law for a long time, the concept may promote concept extension through the interpretation according to period demand or social necessity, however new definition by legislation cannot be accepted easily if it’s not the case of defect in regulation or problem in application. ②Automobile operator's liability belongs to the existence of the element, operating control(and operating profit), the factor was generated by ‘using’ that dangerous article, automobile, even if the concept ‘operation’ is revised, the range of automobile operator’s liability will not be affected at all as far as the standard in the case law is not changed, which reverts automobile operator's liability. And ③If it says that using automobile is operation and maintenance of it is also operation, automobile is always operating as far as it is not scrapped. Therefore, if the automobile operator concept can be changed according to operation concept as the legislator's idea, automobile operator cannot be free from maintenance responsibility, even though the automobile operator proves that he and the driver did not neglect the operating of the automobile, or proves that the third party besides the victim or the driver was intentional·culpable.
Therefore, current operation regulation must be restored quickly to the previous drive regulation, if automobile operator concept cannot be changed in accordance with the purpose of current operation regulation or if abolition of the article in ALSA clause 3 cannot be taken step.

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