생명침해로 인한 손해배상청구권의 구성에 관한 재고찰

일본에서의 논의를 중심으로

In the event that a person is dead due to illegal act, with respect to the nature of damage caused by such illegal act, the founders in Japanese civil law negated inheritance of a claim for damages belonging to the deceased and instead suggested that a successor may claim for his or her own loss in the supporting benefit. However, with the Supreme Court decisions in 1913 and 1920, a theory which recognizes an inheritance of a claim for damages of the deceased has been appeared and since then the opinions supporting an inheritance were superior in the theories and judicial precedents. The reasons that an inheritance of a claim for damage of the decease who isn’t the subject of rights any more are (1) in such case the amount of damages is higher than supporting benefit and (2) the balance issue between the case of the death due to severe injury and the case of instantaneous death. However, other theories negate an inheritance in such case and insist on a damage claim of the survivors arising out of support loss by pointing out the theoretical difficulty in establishing a inheritance such as a reverse inheritance in which parents will inherit their child. In one sense, even if an inheritance of a claim for damages due to life infringement is recognized, this does not mean that a claim for damages due to loss of support shall be negated. The decision of the Supreme Court in 2000 stated that a claim for damages due to loss of support shall be recognized, saying that since the deceased victim was insolvent his successor s claimed for their own damage for loss of support instead of giving up their own inheritance. If only the claim for damages due to loss of support is recognized in case of the victim’s death caused by illegal act, in the event that such deceased victim has no any persons to be supported by him, some unreasonable result will be come out because in such case there is no damage at all. On the contrary, if only the inheritance of a claim for damages is recognized, it will be also problematic that the statutory successors may have more benefit than the persons who are actually damaged by the victim’s death. Considering these aspects, ‘an inheritance of a claim for damage’ and ‘a claim for loss of support’ are not opposite with each other, but can coexist. Therefore, in the event that a successor and a person to be supported by the victim is the same person, he or she should be able to have option for the claims, and in the event that a successor and a person to be supported by the victim are different and so a claimant will be varied according to the kind of claim, a person to be supported by the victim shall have priority over an successor. This is because if the victim had been alive some portion of his income would have been used for a person to be supported by him. Therefore, giving a priority to a claim for loss of support by a person to be supported by the victim is more reasonable in the aspect of real remedy for the victim.