民法 제759조의 改正 論議에 관한 小考

Proposal on Revision of the Article 759 of the Civil Code

Korean Civil Code Article 759 provides the liability for the harm caused by the animals. As the number of domestic animals increase, this Article will be used more often in the near future. In this paper, the author suggests the revision of this Article to make it more useful to the changing circumstances. Scholars say that this liability is a kind of intermediate liability, which lies between the fault-based liability and no fault liability. However, the article itself allows the possessor/keeper escape the liability by proving that she exercised the requisite care in supervising the animal. Liability for animal is a kind of risk-based liability due to the animal’s danger to the community. Therefore, the author suggests that the Code should be revised as a strict liability. The author’s second suggestion is about the person whose liability is sought. Article 759 provides the possessor and/or the keeper as the libility holder. However, the “possessor” is not a proper concept for the risk-based liability in which the liability usually falls on who controls the risk and benefits from keeping it. Therefore, the “keeper” is more appropriate liability holder in this Article. Third, the author proposes that the new Article should provide a force majeure defense to avoid the controvercy whether the keeper could use this defense.