민법 제393조와 불법행위법에서의 예견가능성

Article 393 of the Korean Civil Code and the Foreseeability in the Tort Law

&nbsp;&nbsp;Article 393 of the Korean Civil Code specifies general damage and foreseeable special damage as the remoteness of damages and applies it to the tort law in accordance to Article 763. Dominantly, Article 393 of the Civil Code is regarded as a specification of adequate causation. This is called adequacy theory. Adequacy theory understands causal relation of the existence of liability and the extent of liability as adequate causation. According to adequacy theory, the existence of liability and the extent of liability have no distinction between them.<BR>&nbsp;&nbsp;General damage and special damage cannot be distinguished by ordinary circumstances or extraordinary circumstances. Ordinary circumstances refer to the cause of damage, or the internal condition of conduct, and have no substantial meaning. In most cases, ordinary circumstances and extraordinary circumstances in causal relation conditionally combine to cause damages. Thus, it is difficult to distinguish general and special damages, and it might even cause unreasonable results.<BR>&nbsp;&nbsp;General damage is recognized by average citizen or common sense and special damage asks the violator whether damage was foreseeable to decide whether it should be included in the extent of liability. However, special damage is very rarely compensated for and is mostly excluded from the extent of liability as it is generally not foreseeable for violators.<BR>&nbsp;&nbsp;The foreseeability of general damage is vaguely expressed as average citizen or common sense, but the extent of liability can be changed with regards to its standards. Such standards vary in great depth and are post-evaluated from the perspective of average citizen. When common sense is understood as the official hypothesis, the range of causal relation becomes the extent of general liability. To limit the extent of liability, therefore, the foreseeability of general damage shall be evaluated by a reasonable person’s objective standard which was required of violators at the time of liability.