不法行爲에 있어서 因果關係에 관한 硏究

Abstract

These days, thanks to development of advanced scientific technology and capitalism, we live in advanced materialistic civilization. Thus, under the risk of damages accompanied by risk in inherent in scientific civilization and industrialization process, anyone in this society may be wrongdoers or victims. For reparations responsibility for such damages, the private law regulates that there should be causal relationship between damages and infringement whether it is responsibility on contract or tort. Causal relationship means what relations the result occurred have with a fact as a reason. In general, a formular that no result exists without reasons is used for the method to confirm existence and inexistence of causal relationship. Such causal relationship is caused in philosophy and natural science as well as the private law. The causal relationship in the private law is to give reasonable limits to the relationship as a natural fact relationship, and evaluates the limited causes legally and regulatively to accept the causal relationship. Therefore, the causal relationship in private law is not always identical to the concept of cause in philosophy or natural science. It is suggested that article 416 of the Japanese Private Law which is identical to Article No. 393 of Korean Private Law is based on the Restriction Compensatory Principle by predictability of French or England rather than the Full Compensatory Principle of Germany. That is, Article No. 1150 of the French Private Law regulates that " obligators do not have responsibility except predicted or predictable damages or interests when a contract is concluded unless debt nonfulfillment is intentional. "So, in France, when damages are caused by negligence on reparation ranges by debt nonfulfillment, it is limited to damage predicted by the debtors, and when damages are intentionally caused, even the damages which are unpredictable should be included within the range, which indicates that it is the same intent as Article No. 393 of Korean Private Law. In British and American precedents, the principle of predictability that is based on the condition that the results was predicted or may be predicted in consideration of that reasonable other party knew or may know the fact in the place of the person in calculating reparation in damages by beach of contract or tort is identical to Article No. 393 of Korean Private Law. Problematic causal relationships in Private Law are reparations (Article No. 393 of Private Law) due to debt nonfulfillment and reparation due to tort ( Application of Article No. 393 by Article No. 750, and No. 763 of Private Law ). The purpose pursued by reparation system in private law is to promote equal burden of damages, and the range of reparation at this time is decided by the range of damage and the range of damage is decided by the principle of causal relationship. Another task in tort is a problem related to demonstration of the causal relationship. The responsibility to demonstrate the causal relationship should be burdened by the accuser. Therefore, if the accuser does not demonstrate the causal relationship, it is judged there is no causal relationship and the accuser should demonstrate there is causal relationship and the procedure should be progressed to respond to it. In the process of such procedure, the judger judges existence or inexistence of the causal relationship according to the evidence presented by the two parties. The demonstration of the causal relationship in special torts such as car accidents, pollution, medical errors, and failures of products causes more problems. The private law of Germany accepts enumeration principle that regulates many composites on debt nonfulfillment and torts, but in respect to reparations, regulates the reparation principle that is identical to default on an obligation and torts according to the principle of unification ( Article No. 249 or 55 of the German Private Law ). However, as it has no extra regulation to limit the range of reparation, the principle of complete reparation is understood to be accepted. Thus, as German Private Law accepts the principle of complete reparation, the proposition that the range of reparation is decided only by the causal relationship has been settled and the causal relationship theory has played a decisive role in both parties in deciding responsibility and reparation range. However, as it has no extra regulation to limit the range of reparation, the concept of the legal causal relationship appeared to limit the range of reparation that may be unduly expanded properly. Here, fair causal relationship theory is accepted and the causal relationship law is understood to be identical to the responsibility on contract and in tort. In German law, the requisite that the causal relationship exists between cause and damage exists as expression of legal description on complete reparation as a basic structure of German reparation law. The common view and precedent of our country accept the causal relationship theory fairly, in particular, eclecticism in respect to Article No. 393 of the private law which is commonly applied for debt nonfulfillment and tort. Eclecticism of the several principles on the causal relationship theory fairly indicates that conditions that normal persons may know and the condition that the doer knew at that time when tort occurs are investigated at the same time in respect to the range of the subjects to be investigated. What is the standard of fairness in the conditions of the common view and precedent? That is, ' fairness ' is a common view or experimental principle, but there is criticism that specific standards to decide how much the accuser are compelled to compensate in respect to the sequence of infinite cause and effects are not presented. Also there is a criticism that introducing the causal relationship theory as the theory of interpretation to limit the range of reparation in Germany which accepts the compete reparation theory in respect to the range of reparation as the private law interpretation theory of our country that accepts the limited reparation principle is meaningless. A question whether 2, Article No. 393 of the private law that regulates the range of reparation based on existence or inexistence of predictability is used for normal tort whose special condition is unpredictable is valid has been presented. There is another criticism that common view and precedents are to decide everything using the causal relationship theory without division of casual relationship as a requisite of tort and causal relationship to decide the reparation range, that is, division between realistic causal relationship and legal relationship. That is, although there is practical benefit to accept that there is common things in causal relations as a requisite of tort and causal relationship of the reparation range or divide the causal relationship into the relationship of responsibility and the relationship of the reparation range in German private law that does not have the same regulation as the Article No. 393 of Korean private law, the intent of Article No. 393 of Korean private law does not have any practical benefit in doing such division as long as it is understood to regulate the causal relationship theory fairly. The causal relationship as a requisite of tort is a specific causal relationship that specific facts that are different from facts in reality are connected to the cause and effects, not the causal relationship itself as a general law. In judging the existence of specific causal relationship, the possibility of repetition the same effects appear under the same conditions can be a standard. Therefore, the judgement on existence and inexistence of the causal relationship can not help relying on natural principle or social principle, that is, the causal relationship as a general law. That the causal relationship theory fairly causes confusion by treating one problem and the other problem as the same thing, instead of dividing them according to the purpose of protection presented by the law is a reason of the criticism from different views. That is, as it may be thought to be insufficient to identify the causal relationship theory only with Article No. 750 of the present private law, to obtain definite results, this study suggests that the following articles related to the causal relationship should be enacted: 2, Article 750 【 Tort and Causal Relationship 】 ① When it is recognized that damages do not occur if there is no harmful act, the causal relationship between the harmful act and damage is recognized. ② When damages occur by any act of many acts, the causal relationship between the act and damages is recognized. ③ When damage occur by ① and ② or competition of other causes, the causal relationship is limited to the part which contributes to the damage.