美國 不法行爲法 발전의 이론적 고찰

• 영문명: The Theoretical Studies of Development of American Tort Law
• 발행기관: 한국사법학회(구 한국비교사법학회)
• 저자명: 가정준(Jung-Joon Ka)
• 간행물 정보: 『비교사법』비교사법 제12권 1호, 383~408쪽, 전체 26쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2005.03.01

영문 초록

American tort law is quite different from that of Korea, even though they both have a same ancestor, namely Roman law. This paper will focus on giving you a reason why demarcation between intent and negligence is regarded so essential in American tort law unlike in Korean tort law. It is assumed that this is due to social and theoretical differences existing between these two legal systems and in order to understand the reason why such differences exist, we must thoroughly look at historical and philosophical backgrounds of American tort law. It must be noted, however, that it is almost impossible to wholly cover them, as it is beyond the scope of this article. Thus, I will just concentrate on development of tort liabilities by examining philosophical backgrounds of the United States. American tort law has its origin in old English common law. In England, intentional liability and absolute liability used to constitute tort law, but abandonment of the writ system and emergence of negligent liability in the 19th century had a substantial effect on the scope of tort liabilities. The abandonment of the writ system expanded the scope of tort liability as a whole and the emergence of negligent liability made absolute liability a less important factor in determining one’s tortious liability. In particular, the emergence of negligent liability made tort law an independent branch of law. In the 19th century, American tort law began to depart from that of England, because many American legal scholars had realized that English cases had become incapable of being decisive precedents although their strong effects on various American cases. Due to the industrial revolution, the social and economic situations in England were quite different from those of the United States. English judiciary and politicians were faced by some serious problems caused as a result of industrialization and urbanization in the 19th century. The courts imposed strict liabilities on industrials if they were held responsible for neglecting or causing certain types of injuries related with nonnatural accident and industrialization. It was not easy to adopt such liabilities rigidly in the American legal system because of different economic and social environments from those of England. Furthermore, since the unbalanced.formation of states made each state courts to have different points of view on strict liability, each state accepted and recognized strict liability at different time as a result. Finally, major states allowed strict liability in the middle of the 20th century. From the middle of the 20th century, American courts have expanded the scope of strict liability including product liability. Strict liability has become an independent area in tort law and played a significant role in achieving the social goal of industrial safety. American courts have differently developed the branches of tort liability with different rationales. American tort law consists of three independent tort liabilities: intentional liability, negligent liability, and strict liability with product liability. On the other hand, Korean tort law has developed tort liability with one rational that no tort liability is imposed without one’s fault or faults. Korean tort law has one tort liability, negligent liability including intentional liability. Korean courts have sought special statutes to impose strict liability rather than judicial development. This is why Korean tort law has operated differently from American tort law.

목차

Ⅰ. 서론

Ⅱ. 미국 불법행위법의 역사적, 이론적 발전

Ⅲ. 미국 불법행위법의 사회적 기능의 변화

Ⅳ. 마치며

참고문헌

Abstract