불법행위의 예견가능성과 손해배상범위에 대한 연구

• 영문명: A Study of Foreseeability in Torts and Scope of Damages-Interpretation Problem of applied Articles 393 Mutatis Muntandis by Article 763 of the Korean Civil Code -
• 발행기관: 한국민사법학회
• 저자명: 고세일(Se-il Ko)
• 간행물 정보: 『민사법학』제66호, 137~183쪽, 전체 47쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2014.03.31

영문 초록

Historically the current Korean Civil Code has been succeeded by European Civil Codes, especially the German and French Civil Code through Japan. In aspect of non-performance and torts liability, Korea has imported general provisions, articles 390 and 750 of the Korean Civil Code from the French Civil Code. In the meanwhile the drafters had not enough time to make the Korean Civil Code, due to historical incidents. Therefore, there have been new provisions in the present Korean Civil Code for which interpretations have been difficult, because they had not been in the earlier Korean Civil Code. One of these controversial provisions is article 763 of the Korean Civil Code, by which the article 393 (Scope of Damages in Non-performance) may be applicable by mutatis mutandis to tort claims. In this regard, drafters of the Korean Civil Code had attempted to treat the scope of tort damages as same as that of breach of contracts. However the provision which has treated scope of tort damages as same as that of non-performance, like the article 763 has hardly found in any other comparative laws. Therefore there have been controversies such as pros and cons of the current article 763. In this aspect, this author attempts to examine where the article 763 of the Korean Civil Code had come from in legal historical and comparative perspectives. This article has mainly six parts. In II, this author attempts to look into comparative examples of article 763 of the Korean Civil Code, and then explains the historical origin of the controversial provision. In III, this author studies English Hadley v. Baxendale case, which has influenced the foreseeability rule in breach of contract world-widely. In IV, this author examines American Palsgraf v. Long Island Railroad case, which may be a historical starting point for the foreseeability rule of torts. In V, this author reviews provisions of foreseeability rules in American Restatements (Second and Third) of Torts. In VI, this author examines foreseeability rule of Principles of European Tort Law and Non-Contractual Liability Arising out of Damage Cause to Another in European perspective. Finally while summarizing foreseeability rules of Hadley, Palsgraf, American Torts Restatements, and European discussions, this author attempts to mention why mutatis mutandis of article 393 in article 763 of the Korean Civil Code may be abrogated and a new provision for scope of torts damages may be necessary.

목차

Ⅰ. 들어가면서

Ⅱ. 민법 제763조의 입법례와 연혁

Ⅲ. Hadley 판례의 예견가능성 법리

Ⅳ. Palsgraf 판례의 예견가능성 법리

Ⅴ. 미국 불법행위 보통법전집의 예견가능성 법리

Ⅵ. 유럽 불법행위법과 예견가능성 법리

Ⅶ. 맺으면서

참고문헌

키워드

민법 제393조 민법 제763조 손해배상 범위 불법행위 불법행위 책임 예견가능성 인과관계 준용 팔스그라프 판례 하드리 판례 article 393 article 763 of the Korean Civil Code causation foreseeability Hadley case mutatis muntandis Palsgraf case scope of damages torts tortious liability