미국법상 공동불법행위자 상호간 구상관계

Contribution among Joint Tortfeasors under U.S. law

Contribution among joint tortfeasors is, after all, a matter of ultimate distribution of tort liability. In other words, it deals with “suum cuique tribuere”, namely the justice in attributing to each his own share. In this regard, the doctrine of contribution is one of the most important vehicles by which distributive justice in tort law can be achieved. Against this backdrop, I have addressed various aspects of the U.S. tort doctrines regarding contribution. Traditionally, the U.S. tort law imposed joint and several liability on tortfeasors only when there was concerted action or conspiracy among them. Contribution was not allowed among joint tortfeasors even when one of these tortfeasors discharged liability of other tortfeasors. With time, the U.S. tort law has enlarged the scope of joint and several liability by imposing such liability where joint torts has caused indivisible damages. No-contribution rule was still deemed applicable for such joint torts. However, as comparative negligence that reflects the idea of apportionment of liability became dominant over contributory negligence, no-contribution rule has been modified. Nowadays, a joint tortfeasor is widely entitled to seek contribution. Yet, many states still deny the right to contribution in case of intentional torts. As the right to contribution was made largely available, the standard of determining the scope of contribution has become even more important. The Restatement (Third) of Torts on Apportionment of Liability, in its Article 8, enumerates factors for assigning percentages of liability among tortfeasors, such as the nature of the person’s risk-creating conduct and the strength of the causal connection between the person’s risk-creating conduct and the harm. The diachronic change of the U.S. tort doctrine may be described as a meaningful move toward more elaborate apportionment of liability. This trend can be witnessed in the rise of comparative negligence, abdication of a no-contribution rule, and elaboration on the standard of liability apportionment. Recent changes in many states toward restriction on joint and several liability while enlarging the scope of several liability, is also another sign of such trend. The above discourse on contribution is worthy of note from the perspective of Korean law. Korean tort law has acknowledged the large scope of joint and several liability with wide entitlement of contribution right. Although I take this stance as appropriate in principle, some exceptions need to be allowed when equity requires so. In seeking a theoretical grounds for such exceptions in the name of equity, the U.S. tort doctrines may be useful sources for reference.