미국 불법행위법의 구조와 내용에 대한 연구

A Study of Structure and Contents of American Tort Law – focusing on Negligence provided in Restatement-

In United States, there have been various sources of laws including positive laws. Further there have been various Restatements in which many members of American Law Institute have discussed and drafted. Although the Restatements may not be positive laws, they have worked similar functions as positive laws have done. Most of US law schools have used the Restatements as one of most important materials for their students’ education, and US courts have cited many provisions of the Restatements to make decisions in various civil cases. In this regard, this author has estimated that the Restatements would be a good guide to understand American law: structure and contents. Therefore this author has chosen the Restatements of Torts (Second) to show the foundation of current American Tort law, while focusing negligence as a founding part of American Tort law. In this aspect, this author attempts to explain principal provisions of negligence in US Restatements of Torts: mainly sections 281 through 328D. In II of this article, this author mentions history of american torts law prior to 19th century, and then explains history of the Restatement of Torts which was at birth in 20th. In III, this author refers to a general concept of negligence in the Restatements of Torts, while stating definition, requirements, criteria of negligence and standards of actor’s behaviors. In IV, this author explains various of negligent acts in the Restatements of Torts. Thus this author describes dangerous acts, danger of harms, and use of incomplete instruments, misrepresentations of physical harm, dangerous emotional distress, duties of affirmative action. In addition, this author explains burden of proof concerning negligent actions. In V, this author summarizes the contents of negligence provisions of the Restatements of Torts. Finally this author attempts to suggest what Korean Tort law, which has Civil Law tradition may be able to learn from the negligence provisions of the Restatement of Torts, which has Common Law tradition.