공동불법행위에 있어서의 과실상계

Comparative Negligence in Joint and Several Liability

M eanw hile, the Torts Law has focused on the protection of victim s. H ow ever, a reform bill about th joint and several liability, w hich elim inates or lim its a joint liability of tort from the perspective of tortfeasors is recently receiving the attention. The optim al distribution of tortfeasors’ liabilities of a joint tort can be perform ed through the right to indemnity in internal relationship with victim s, and through the legal principle of com parative negligence in external relationship w ith victim s. In particular, if tortfeasors are certainly culpable for victim s, the distribution of their liabilities can be carried out through the rational m anagem ent of the com parative negligence. The methods of comparative negligence in a joint and several liability are generally divided into an overall evaluation theory and an individual evaluation theory. The am ount of com pensation and joint and several liabilities varies depending on the methods taken. Both methods have strengths and weaknesses. In particular, the overall evaluation theory, w hich w as taken in precedents, has a problem that tortfeasors should bear liabilities of other tortfeasors’ contribution portion as well as his ow n portion, and that a risk of one tortfeasor’s insolvency can be imposed on other tortfeasors. Com parative negligence can be influenced by the ideology, regulation system and contents of the Joint Tort Law in m any w ays. W hat is im portant in com parative negligence of a joint tort is w hat effect victim s’ negligence w ill have on a claim for dam ages to each tortfeasor, and how victim s’ negligence w ill be considered in the relation w ith m ultiple tortfeasors. Accordingly, this study exam ined a com parative negligence system based on the legislations and interpretation theories for a joint and several liability in each country, and identified the drawbacks of this system .