한국 불법행위법에 관한 최근 입법 논의

Recent Arguments for Reformation of Korean Civil Code

There have been several arguments for the reformation of Korean Civil Code(hereafter “KCC ). The past official ones could be found in “Proposal for Reformation of the Tort Law of KCC , a report by KCC Reformation Committee of the Korean Association of Civil Law in 1995 (hereafter “1995 Argument ) and a bill for the reformation of KCC by the Korean Ministry of Law in 2004 (hereafter “2004 Argument ). The 1995 argument was just an academic one. The bill of 2004 argument was discarded owing to the session termination of the Korean National Assembly. The third official argument is now in process by the KCC Reformation Committee organized by the Korean Ministry of Law in 2009 (hereafter Present Argument ). This paper aims at comparing and analyzing the critical issues in the three arguments focussed on the reformation of tort law in KCC. The sections of the tort law of KCC could be divided into three parts including the sections for the general rules of tort law, the sections for the special tort liability, and the other sections. The sections for the general rules are Section 750 through Section 752. The most critical issue of reformation of the sections is the basic system. The present tort law of KCC is ruled under one principle of fault liability. It has some exceptional sections which are properly classified as ones for strict liability. Some professors in 1995 Argument have suggested that KCC have a general section for strict liability. If the suggestion would be adopted, the tort law of KCC would have the two general sections for fault liability and strict liability respectively. The 2004 Argument did not adopted the suggestion. The Present Argument did not decided on such an issue. The present writer supports the suggestion in 1995 Argument. The other issues in the sections for the general rules include legally protected interests, emotional distress, money payable periodically and remedies. The sections for the special tort liability are Section 753 through Section 755 for guardian s liability, Section 756 for vicarious liability, Section 758 for possessor s liability, and Section 760 for joint tort liability. The critical issue of reformation of the Section 755 is the liability of guardian whose child is a tortfeasor without any mental incapacity. All of 1995 Argument, 2004 Argument and Present Argument adopt the new rule for such a liability of guardian. The critical issues of reformation of the Section 756 are the defenses by the employer and his or her right to indemnity. All of 1995 Argument, 2004 Argument and Present Argument support the abolition of the rule for the defenses of the employer and the adoption of rule for the restriction of his or her right. One of the critical issues of reformation of the Section 758 is who should be the defendant. According to the present rule, the owner would be a defendant only when the occupier has the defenses against the liability. There has been a suggestion that the owner should be a defendant regardless of the occupier s defenses. The suggestion was not accepted in 2004 Argument. Present Argument adopts it. The other issues include objects causing the damage, the condition of the object, and defenses. There are also many issues in the argument for the reformation of the Section 760. The most critical one is the mitigation of the liability of defendant whose level of contribution to damage is very low. The sub-committee for the tort law of the KCC Reformation Committee organized by the Korean Ministry of Law in 2009 accepts the rule for mitigation of his or her liability. The issues of reforming the other sections include the defenses of tort liability, the extinctive prescription of claim for damages, the injunction, and the punitive damages. The sub-committee submitted the pro