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KCI등재 학술저널

아동 성폭력으로 인한 불법행위 손해배상채권의 소멸시효

발견주의 법리(discovery rule) 중심으로

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The following three reasons have been pointed out as the reasons for the inadequate protection of victims of child sexual abuse(hereinafter “CSA”) in the statute of limitation(hereinafter “SOL”) regulations of the civil law before modification in 2020. First, in the case of CSA, it is a mistake to make it possible to judge the starting point of the subjective SOL based on the time of recognition of the legal representative, even though the guardian or legal representative is often the perpetrator. Second, in the case of CSA, it is necessary to recognize the long-term extinctive prescription period rather than the nature of the case. Third, if both the objective starting point of the long-term extinctive prescription and the subjective starting point of the short-term extinctive prescription are applied as in the current law, the protection of victims of CSA cannot be faithful. The first concern was largely resolved by the amended Civil Code. In other words, Article 766 (3) of the amended Civil Act suspends the statute of extinctive prescription of the right to claim damages for illegal acts until the victim reaches adulthood. It was calculated from the point of adulthood and allowed to claim damages from the perpetrator within a three-year period. Next, the point that a longer period of extinctive prescription should be recognized in the case of sexual violence against children is in line with the trend of each country emphasizing the sexual protection of children. In the case of sexual violence against children, whether the long-term extinctive prescription period is specifically recognized, and if so, how long it should be decided through more research and review in the future. However, as long as the objective base point system remains, stopping the SOL until adulthood is not sufficient to protect victims of CSA, and acknowledging the long-term extinction period is not a complete solution. In the end, in the case of CSA, it is necessary to apply only the subjective starting point, excluding the objective starting point, which is applied regardless of whether the victim is recognized or not, by introducing the American discovery rule.

Ⅰ. 서 설

Ⅱ. 소멸시효 일반론

Ⅲ. 미국법상 발견주의 법리

Ⅳ. 우리 민법에의 시사점

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