계약책임과 불법행위책임의 관계: 보호의무를 중심으로

• 영문명: The Contractual Liability and The Tort Liability
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 원상철
• 간행물 정보: 『비교사법』비교사법 제10권 2호, 157~192쪽, 전체 36쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.06.01

영문 초록

The two causes to originate claims for damages are non-fuIfillment of contract and tort. Since the roman law, Tort liability have been constituted as separate regime. Under the influence of which, the Korea Civil Law proscribes these two regimes apart. Contractual liability is the liability for the breach of contract between persons concerned linked by the contract, but Tort liability means that of compensation for damaged caused by the breach of obligation, irrespective of contract, among general people, so we can find the differences in requisite and effect between liabilities as I have written those in latter part of this paper. But contractual liability and tort liability have similarities from a standpoint of making for damages. And, as the two liabilities have the object of granting, a plaintiff can satisfy through one of two liabilities, so the accessibility between the two liabilities in requisite and effect become higher. In relating to this, the two liabilities are prescribed as separate regime of claims or whether he can do one of them when the same fact-relation between the same persons concerned is applicable to requisites of the two liabilities, especially one fact satisfies requisites of the two. For example, What is the liability that a car driver bears when his passenger was hurted by his fault? What's the liability of the two that a tenant bear when the lease's object was burnt down by his fault? In the course of settlement of these problems, the conflict of claims is raised. The settlement of these problems are not easy but very complicated in Civil Law. The conflict of claims has been developed with close relation to the disputes of object of a lawsuit, so the theoretical confusion has been deepened and lots of theories have been constructed. The conflict of two liabilities will be discussed mainly in this paper. The discussion provides an indicator in settling all the conflict of claims in our Civil Law and supplements legislative deficiency. In these days, through making narrow the gap between contractual liability and tort liability, the boundary of the two liabilities becomes vague. And in Germany, protective obligation to contract has been demanded widely, and furthermore, before materializing the contract and for the unrelated persons, outside of the contract, protective obligation to contract has been demanded as a similarity to contract or a quasi -contract. By the reasons of this, we cannot discriminate the boundary of the two responsibilities. So we meet problem, what is the liability that we can constitute. in damages to human body, to aviation, shipping and overland transportation, product liability and malpractice liability. we can find many problems surrounding contractual liability and tort liability, I considered conflict of claims, the practical differences between the two liabilities and regime overlapped by the two liabilities. I criticized the common view and the judicial precedent tried to integrate the two liabilities by new methodical re-constitution, in standpoint of substantial law. I tried to make dear the relation between the two liabilities by brief observation of liability existing in the boundary of the two liabilities that is not discussed actively in academic world.

목차

1. 서론

2. 계약법상 책임영역

3. 불법행위법상 책임영역

4. 계약책임과 불법행위책임의 교차

5. 결론

참고문헌

ABSTRACT