민법 제758조의 개정에 관한 연구

De Lege Ferenda of Section 758 of Korean Civil Code

The liability ruled by Section 758 of the Korean Civil Code(hereafter “KCC ) has no less than 6 issues including the object causing the damage in the section, its conditions for the liability, the standing to be sued, the category of damage covered by the liability, the class of the victim protected by the section, the nature of the liability and so on. In this paper, the first three issues are analyzed from the viewpoint of de lege ferenda. The current Section 758 KCC reads that the object causing the damage in the section is a structure or a tree. The word “structure has the meaning of a thing made artificially. The Section 98 KCC defines the meaning of the word “thing appearing in KCC as a thing independent physically or notionally from the other one. However the Korean Supreme Court applies the Section 758 KCC even to the parts of a plot of land. The object causing the liability in the future law of the section must include the “land itself that such an attitude might be taken into consideration in de lege ferenda of the section. Moreover the “structure should be substituted with a “fixture which does not include only the artificial conditions of land but also the trees. The current Section 758 KCC stipulates that the object s conditions causing the damage should be defective in its installment or maintenance. The Korean Supreme Court understands the meaning of “defect in the installment or maintenance of the object as “lack of reasonable safety of the object caused by the breach of duty to protect reasonably a person and his or her property against danger. The international trend is to express the conditions as “lack of reasonable safety . Therefore in the future text of the Section 758 KCC the object s conditions causing the damage should be expressed as “lack of (reasonable) safety and the element of the breach of duty to protect should be take into consideration for one of defenses. The standing to be sued in the current law of Section 758 KCC is ruled in a stepwise manner. The first main defendant whom a victim should sue for the damages must be the occupier of the object. However the occupier success in showing a defense of no breach of duty to care could make him become immune from the liability for the damages. Then the victim could sue the owner of the object as a main defendant, whose liability is strict. When the nonowner occupier of the object failed to show his defense, the victim cannot sue the owner even though the nonowner occupier lacks of means to pay for damage but the owner has means to do so. The future law of the Section 758 should search for the way balancing the victim s helplessness in such a case and the severity to the owner by his or her strict liability. Such a way could be found where the nonowner occupier and the owner would be liable jointly and severally and the chance of the same defense as the nonowner occupier s one would be given even to the owner.