불법행위법상 위험책임 일반규정의 입법화에 관한 연구

An study of new establishment of general provisions on risk responsibility

According to present civil law, torts is applied based on the principle of responsibility by negligence, and thus risk responsibility is being introduced exceptionally. Risk responsibility is considered as legislative counteraction for the victim protection needs that have grown ever in the course of high tech industrialization in the 19th through 20th century throughout the world. In such a context, new establishment of general provision for risk responsibility was asserted in the discussion of revision of civil law in 1995. About the assertion, proponents maintained that establishment of special law may involve such potentials like delay of protection and backwardness of national consciousness on facility or risk of substance, and reliance on special law may increase the problem of equitability among businesses, but allow for presence of businesses that may not take advantage of the legislation. On the contrary, opponents emphasized that no general provisions exist even in other countries that have many special laws on risk responsibility. Also in the 2004 revision discussion, new establishment of general provisions on risk responsibility was discussed, but it was determined that the issue shall be excluded from revision. Regarding the new establishment of general provisions of risk responsibilities, it remains a question whether to maintain the classical formula to approach the issue by weighing the advantages by the operation of risk facility and the disadvantages by realization of risk. New establishment of general provisions of risk responsibility can be supported only if the ideological changes in the responsibility of deficit indemnity from the past are recognized. Later on the issue of indemnity responsibility for deficit shall not be considered content, only indemnifying the deficit upon recognizing the fact that the deficit was caused by intention. There are clearly areas where offender may distribute the deficit of particular person socially through taxation of indemnity amount, pricing structure or other liability insurance etc by attributing the negligence to the offender. It is more desirable to distribute the disadvantage by the deficit by risk facility with social value socially than to let a particular victim undertake such deficit. In such perspective, in case general provisions on risk responsibility are newly established, the general requirements for offender's responsibility for risk should include provisions on the capability to distribute deficits as well as to create risk.