우리 민사법상 위험책임에서의 손해배상범위에 관한 비판적 고찰

A critical analysis of the scope of compensation for liability based on dangerousness in Korean civil law

In modern tort law fault-based liability and strict liability (or more specifically Gefährdungshaftung) enjoy equal status. However that is not the case in Korean tort law since the Korean Civil Code was enacted under the overwhelming influence of the principle of fault liability. The fact that numerous special acts regulating strict liability outside the Civil Code also lack theoretical strictness does little to rectify the situation. Therefore it is necessary to reinforce the theoretical foundations of the institute of strict liability in Korean tort law. First, Art. 763 of the Korean Civil Code should be amended. Currently it applies Art. 393 which is a provision on determining the scope of compensation for damage caused in contractual relations. Since Art. 393 stipulates that damage must have been foreseen or was foreseeable in order to be compensable it contradicts the nature of strict liability. Strict liability is, by definition, imposed regardless of whether there is fault or not, and yet the application of Art. 393 would effectively result in requiring fault in order to hold the tortfeasor liable. Second, the introduction of liability caps on the amount of compensation should be considered as a possible means of limiting strict liability. Also, it would be well advised to exclude foreseeability among the various circumstances that are considered in applying the theory of adequate causation. Otherwise the scope of compensation would depend on the attributes of the tortfeasor and not the nature and extent of danger. Third, applying a theory of comparative negligence in strict liability results in comparing negligence on the part of the victim and the tortfeasor. This contradicts the essence of strict liability. Instead, a theory of comparative danger may be considered. According to this approach it is the degree to which the victim and the tortfeasor contribute to danger that should be subject to comparison. Fourth, special acts regulating strict liability in Korea leave much to be desired with regard to stipulating liability for dangerousness. Too many exceptions and restraints are introduced into relevant legal provisions making the scope of application of strict liability too narrow. Legal reasoning, not legal policy should form the foundation of enacting such acts.