損害賠償範圍의 劃定基準으로서의 豫見可能性

• 영문명: Foreseeability as a Rule for Difining the Scope of Damages
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 박영복
• 간행물 정보: 『비교사법』비교사법 제10권 1호, 265~302쪽, 전체 38쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.03.01

영문 초록

All legal systems use some test as to whether or not a particular loss is in the circumstances of the case to be judged too remote to allow it to be recovered. In English law the rules on remoteness were first developed in the celebrated care of Hadley v. Baxendale(1954) 9 Exch.341. It was at one time thought that the case should be understood as establishing two rules, namely 'that the damages should be such as may fairly and reasonably be considered as arising either: a) naturally. i,e. according to the usual course of things from such breach of contract itself, or b) as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach. The first rule applied th that which any reasonable person would have realized would flow from the breach. This second rule applied where there were particular circumstances known to both parties at th time of the contract which increased the consequences of the breach and therefore the defendants' liability. As was pointed out in the case, it would be unjust to impose such an additional liability without giving the defendants the opportunity to limit their liability or, it might be added, to adjust their price for the extra risk The remoteness test in Hadley v. Baxendale was reformulated in Victoria Laundries v. Newman in what has been referred to as a classic statement of the law: The aggrieved party is only entitled to recover such part of the loss actually resulting as was at the time reasonably foreseeable as liable to result from the breach. What was at the time so foreseeable depends on the knowledge then possessed by the parties, or at all events by the party who commits the breach. From the formulation of the test of remoteness by the House of Lords in the Heron II it now appears that the correct test should be the probability of the loss occurring. A consequence could be foreseeable but most unlikely to occur and that should not give rise to a claim in damages in contract. Korean law accepted formulation of the English contract principle, however does not use the test of foreseeability, applied generally the test of the adequacy of causation. According to this theory damage may only be recovered if it arose from an act which in the ordinary course of events objectively and significantly increased the probability of the damage occurring, This assessment is to be made an the basis of that which would have been made at the time the damage occurred by an expert observer, based on a knowledge of all the relevant circumstances including the particular knowledge of the debtor. However, recognizing that the adequacy of causation rule may at times be inequitable the German courts will also apply the 'scope of the rule' theory in order to limit the cases in which damages can be recovered to those related to the scope and object of contract. 393 Korean Civil Code defines and limits the extent of debtor's liability, A debtor is only liable for damage which he foresaw or which he could have foreseen at the time of contracting, While the roots of this provision lie in the English contract principle, the korean jurisprudence have been strongly jnfluenced by the german doctrine, which use the test of causation and reject that of foreseeability for the purpose of limiting damages. It may not be separated, so r commented in conclusion the article of the korean civil code on the limiting the damages similarly with the general principle of English law.

목차

1. 머리말

2. 예견가능성론의 정립

3. 비교법적 시각에서의 분석

4. 예견가능성론의 영향

5. 우리나라 법에의 시사

참고문헌

ABSTRACT