우리 不法行爲法의 素描

Retrospect and Prospect of Korean Tort Law

As of the 50th year of enforcement of the Korean Civil Code(hereafter, ‘KCC’), Korean tort law developed and changed conspicuously in retrospect and has a good prospect in a diversity of points. Such a comment or conclusion could be deduced from the papers and precedents relating to the law. Taking a broad view of it, especially its ideology and system, the Korean tort law enlarged the sphere for the principle of the damage distribution and liability without fault to the extent that the dualism of fault and no fault system in the Korean tort liability law could be properly suggested. There could be affirmatively analysed the details of requirements for the tort liability. They include the concept and typology of harm and interest, the appreciation of the rights in the body and mind themselves, the argument of cause in fact between the preceding event and the harm by its subsequent events, and the defects in operation of the but for test in case of concurrence of the acts causing the same harm. The analysis of a requirement of fault could be made relating especially with the wrongdoer s mental ability and the principle of decision for the best management. The argument of the judicial precedents drawing the limiting line of tolerance by a victim of the harm by his or her neighbors could be accepted as one of the elements finding the wrongfulness under the viewpoint of the boundary of interest protected from the neighbors, especially in the defamation against the public figures and the infringement of the environmental interests. The different remedies from the present damages regulated in the Section 750 of KCC should be added for the victims. It has been properly suggested that the remedies of the restoration and the injunction should be allowed for the victims in any kind of torts within the judicial discretion. The legislative arguments in the liability of parents(Section 755 of KCC), the vicarious liability(Section 756 of KCC), the liability of possessors of land(Section 758 of KCC), and the joint and several liability of joint tortfeasors(Section 760 of KCC) have been made to the extent that they could be accepted in the revision of the KCC. This paper could be concluded by the comment that many affirmative occasions could be offered for the Korean tort law.