사용자책임의 요건으로서 사용관계

Examining the employemnt realtion for employer’s vicarious liability

According to art. 756 of the Korean Civil Code, the employer’s vicarious liability presupposes the employment relation betweein her and the wrongdoer. Case law as well as academic doctrine for long time have used the control test for this purpose: the employer must have right to order and supervise the course of the tasks being done. If reviewed critically, however, it is not sure whether other policy considerations are at work behind the prima facie coherent and stable case law. In this article, the author tries to clarify these policy factors from comparative perspective. He gives an overview of the Korean case law, compares it with those from other jurisdictions (Germany, France and England) and describes his own suggestions. It is submitted that the control test still plays an important role, while other elements and circumstances must be taken into consideration and that the joint vicarious liability should be accepted in case of transferred employee.