損害賠償의 範圍에 관한 硏究

• 영문명: A Study on the Scope of Damages in Contract and Tort
• 발행기관: 호서대학교 사회과학연구소
• 저자명: 金泰翰 都瑢洛
• 간행물 정보: 『사회과학연구』제15집 제1호, 47~91쪽, 전체 45쪽
• 주제분류: 사회과학 > 행정학
• 파일형태: PDF
• 발행일자: 1996.12.31

영문 초록

There is a need for some restriction upon the liability of the dependent in contract and tort for losses which he has caused. This need should be met by making a suitable remoteness test . Firstly, the contract test of remoteness. Article 393 of Civil Code, which deals with the limit of damages in breach of contract, uses foreseeability as a criterion for the remoteness test and has been recognized by the Supreme Court to have adopted German-born Die Theorie vom adäquaten kausalzasammenhang. Some doubt cast on Die Theorie prompted us to to seek the Article s origin. Article 393 is established, in this treatise, to have come from Common Law s Hadley rule(1854). The Hadley rule, made by British Court of Appeal, can be broken into two parts. The party in breach will be liable for losses either: (a) arising naturally, ie according to the usual course of things; or (b) such as may reasonably be supposed to have been in the contemplation of the parties, at the time they made the contract, as a probable result of the breach. It is said that the first rule refers to the usual type of loss(general damage) and the second rule to unusual type of loss(special damage). Although the rule is often stated in this dual form, both parts relate to what the parties could reasonably contemplate as not unlikely to result from the breach. The only difference between the two parts is the degree of the knowledge attributable to the party in breach at the time of contracting. It should be also noted that the rule is really about what could be contetmplated by the reasonable man in the position of the party in breach. The original dual form of Hadley rule is introduced to the artice 393. The two parts of the rule was, by the same Court in the Victoria Laundry(1949), reformulated into a single rule in this way: as being whether the loss was such that, at the time of contracting, the parties would have reasonably contemplated it as not unlikely to result from a breach . This single form of rule is considered to deemphasizes the general-special distinction of damages. This, which was unknown to us at the time of legislation of Civil Code, would not have invited misunderstanging on the Hadley rule. We confirm that Hadley rule corresponds with Die Theorie and that Die Theorie is better for the Aritcle 393. Secondly, the tort test of remoteness. Article 763 of Civil Code provides that Article 393 be applied correspondingly to tort. Whether the provision should be taken, literally or with a pinch of salt is the point in which we differ. Common Law gives us a hint. The House of Lords, British supreme court, sees, in Heron II, foreseeability rule in contract test as also applicable in tort test. But their lordships felt that the test of remoteness in contract must be kept distinct from the lesser requirement in tort. They thought that the tort test encompassed any type of damage which was reasonably foreseeable, even though it might happen only in the most unusual case . The tort test regards as good enough even a loss which can be reasonably foreseen with a much lesser degree of probability. It s required to see the different degrees of the probability with which the loss must be foreseen. The same goes in America. The scope of the foreseeable risk is on its way to ultimate victory as the criterion of what is proximate cause. It would accordingly be safe to say that you take it literally. The foreseeability is the universal rule of remoteness test in contract and tort of Common Law. But it should be reminded that it is only one of the factors which are important in deciding remoteness. Much is there to be considered further in remoteness test.

목차

Ⅰ. 緒言

Ⅱ. 損害賠債의 原理論

Ⅲ. 損害賠債範圍에 관한 比較法

Ⅳ. 民法上 損害賠償範圍에 관한 規定

Ⅴ. 民法上 損害賠償範圍에 관한 學說

Ⅵ. 結論

參考文獻

ABSTRACT