사실상 인과관계 및 법적 인과관계와 객관적 귀속

• 영문명: Factual Cause, Legal Cause and Objective Imputation
• 발행기관: 한국형사판례연구회
• 저자명: 김종구(Kim, Jong Goo)
• 간행물 정보: 『형사판례연구』형사판례연구 제24권, 95~121쪽, 전체 27쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2016.06.30

영문 초록

Under the Anglo-American law, there are two types of causation: factual causation and legal causation . The test for factual causation is a but-for test or sine qua non test. However, there is no dominant test for legal causation. The reason for that is legal causation is a flexible analysis involving a variety of policy considerations. The structure of the theory of causation in Korean and German law is almost the same as in Anglo-American law. Under Korean and German law, causation has two aspects: natural causation , and objective imputation . Natural causation is a matter of fact and determined by the sine qua non test as in the Anglo-Americna law. The issue of objective imputation cannot be answered by a single test because it is a matter of policy or evaluation. The test for legal causation and objective imputation is determined after evaluating various policy considerations. The author of this article compares a Korean Supreme Court case and a US Supreme Court Case concerning legal causation. The US case is a very famous one commonly known as the Palsgraf case. In Palsgraf, the Plaintiff was standing on a railroad platform purchasing a ticket, when a train stopped and two men ran forward to catch it. One of the men nearly fell, and two railroad employees attempted to help him. In the process, a package containing fireworks fell and the contents exploded. As a result of the explosion some scales at the other end of the platform fell and struck the Plaintiff. Plaintiff sued and a jury found in her favor. The Appellate Division affirmed this decision. However, the Court of Appeals, the highest court in New York, reversed and dismissed Palsgraf s complaint, deciding that the relationship of the guard s action to Palsgraf s injury was too remote to make the defendant liable. The dissenting opinion in Palsgraf s viewed the case as a matter of proximate cause. The dissent takes the view that, as a matter of law, it could not be determined that the Defendant’s actions were not the proximate cause of the Plaintiff’s injuries. The structure of a Korean Supreme Court case is very similar to that of the US case. In the Korean Case, the Defendant s car was struck by a train at a railroad crossing due to Defendant s negligence. The Plaintiff, who was waiting for a train s passing at the railroad crossing, fell and was injured. The Plaintiff was not hit by the Defendant s car, but he was injured because of the impact of the crash. The Korean Supreme Court recognized the causation between the Defendant s negligence and Plaintiff s injury. However, the author of this article argues that this case is a matter of legal causation and Defendant’s action was not the proximate cause of the Plaintiff’s injury. This argument is almost same as the one put forward by the dissent in the US case. The tests for legal causation or objective imputation vary from view points to view points. Thus, it is important to develop certain tests for legal causation or objective imputation that can be applied generally. For that to occur, we must analyze scholarly opinions and court results from both German law and Anglo-American law.

목차

[대상판례] 대법원 1989. 9. 12. 선고 89도866 판결

[연구]

Ⅰ. 머리말 - 대상판례의 쟁점

Ⅱ. 인과관계의 사실적 측면과 법적 측면

Ⅲ. 비교 판례 - Palsgraf v. Long Island R. Co.-

Ⅳ. 대상 판례에 적용

Ⅴ. 맺음말

키워드

인과관계 객관적 귀속 사실상 인과관계 법적 인과관계 근접원인 Causation Objective Imputation Factual Cause Legal Cause Proximate Cause