스포츠법상 불법행위책임에 관한 연구

Abstract

With the increase in a desire for healthy life and a sense of enjoying human life, sports activity of modern society has become one of necessary social and cultural tools. However, since sports are in substantial characterized by accomplishment orientation, competitiveness, high-difficulty technique, and challenge to the limitation of human faculty, they have high probability of serious or inevitable accidents. Under this circumstances, people's legal sense about their rights has been reinforced and victims increasingly seek their legal responsibility as a positive solution against offenders. However, considering the inherent value and essential danger of sports and peculiarities of sport events, it is not appropriate to apply a solution to dispute by a civil or criminal suit which deals with crimes or accidents occurring in ordinary social relationship. For this reason, this study is intended to derive legal principles of protection and relief for victims and of reduction and exemption from responsibility for offenders in sport accidents caused by sports activity and participation on the assumption of comprehensive fundamental rights based on constitution and fundamental right of sports not listed. To achieve this goal, this study reviewed and analyzed domestic or international literatures, theses, academic seminar materials, and books. First, liability of illegal sports acts decides liability for the damage according to the following procedure based on the conformity rule of Art. 750 of the Civil Law. The objective of civil liability is to decide liability with its focus on victim's relief. To meet conditions of sports acts in terms of a principle of law, i)offender's deliberation and negligence of his/her harm shall be proved and ii)an act of actor with liability capacity, that is, an act of actor with discretion capacity constitutes an illegal act and has liable ability. When i) and ii) are met, the liability for damage is decided. If the act is very deliberate and harmful and has gross negligence, the scope of estimating damage shall be broadened. Second, in case supervisors such as sports teachers, directors, and coaches, or sports clubs and schools teachers are negligent in their attention duties, it shall constitute violation of supervisor's attention duties, resulting in supervisor's liability as special illegal act in accordance with Article 755 of the Civil Law. In particular, illegal sports acts related to sports activity which occur by a person without liability capacity(a minor provided in Article 753 and the non compos mentis in Article 754 of the Civil Law) constitute this case. Third, user's liability provided in Article 756 of the Civil Law defines a type of special illegal acts and acknowledges obligation to damage of sports coaches, government employees, and teachers as well as general company subjects, interpreting the scope of user's liability. In case accidents happen because of the fault of sports coaches, government employees, or teachers, they shall be primarily liable. User's liability is based on the principle of compensation liability that since users benefit from certain business, they should accept damage, and the principle of damage liability that a person making danger shall be responsible for the danger. But in case sports coaches work for public sports facilities or public schools, their liability shall be exempted in accordance with Article 756 of the Civil Law, and instead, state or public agencies shall bear compensation liability in accordance with Article 2 of the State Tort Liability Act. Finally, Article 758, Section 1 of the Civil Law defines structure liability that in case the establishment or fail to maintain of structure causes damage to others, the possessor of the structure shall be primarily liable and its owner shall be secondarily liable. Imposing a heavy duty to maintain safe state or minimize danger of structure including sports facilities or stadiums upon managers(owner?possessor) is based on the principle of danger liability that acknowledges possessor's no-fault liability about sports facilities. By taking full and complete care of maintaining sports facilities or stadiums with high danger and maintaining a safe condition in an aspect of architecture or technology of sports facilities, it guarantees sound and positive sports activity, meets policy concern, and realizes ideal social community life in terms of relief from accidents. By defining a duty of strict attention and supervision, owners and mangers of sports facilities will try to prevent danger and secure safety. In sports-related crimes·accidents, the first important purpose is to find out legal liability and give relief and protect victims. However, offenders could get into social and economic danger due to increase in economic burden caused by liability for damage or be branded as a criminal in society. Such recognition may be a great obstacle to the development and promotion of sports, impair the value or essence of sports, and even contract sports participation or activity. It is sure that legal liability should be strictly applied by civil?criminal interpretation of law about deliberation, negligence, and illegality in the level of th positive law in a constitutional state in order to secure social peace and public order and national, social, and individual benefit and protection of the law. However, from an angle of sports, given peculiarity and inherent danger of sports, the methods to reduce or exempt civil?criminal liability against tort need to be explored in order to minimize offender's economic damage, to secure his/her social and economic status, and to protect minimum human rights. The law principles of exemption are as follows. i) The principle of accepting danger(accepted danger): To agree tacitly on usually predicted danger caused by the nature of sports events such as boxing, wrestling, judo, or taegwondo. In case actors observe required rules and work with ordinary attention, even if accidents or crimes infringe others' rights, legal liability shall not be charged. The principle of applying or limiting allowed danger is the principle of reliance. ii) Force majeure: In case ordinary required attention or defense is fully given by sports rules and allowed ways, but it is not possible to avoid accidents, unless it breaks social acceptability and established rules and results in death or severe injury, it shall be accepted as special and essential danger and offenders shall be exempted from criminal liability but bear civil liability for damage. iii) The principle of reliance: In participation in sports activity, sports participants(victims) or the third party predict or expect to act within the range of sports rules or methods. Harmful acts which happen in the conditions of keeping game rules and slight violations of rules anticipated in terms of the nature of games do not break social acceptability and established rules and are exempted from legal liability. Since sports imply danger, liability for accidents should be divided in the mutual optimum level based on the principle of reliance. iv) The principle of self-fault: Offspring acts that one's benefit and protection of the law are infringed by self-fault. In case of one induces injury by oneself in clinging, using a ball or a tool, or tackling, unless it breaks social acceptability and established rules, one should be liable. Finally, v) a cause to exempt illegality: In sports activity-related accidents, although rules or methods of sports events are well-observed, because of the nature of sports, accidents are not avoidable despite a justifiable act, the act comes to break estimated illegality which happens according to constitution condition and excludes its illegality exceptionally. For this case, the Civil Law has a provision of self-defense and emergent refugee(Article 761 of the Civil Law). Accordingly, it is reasonable to invoke a cause to exempt illegality provided in Article 20 and 24 of the Criminal Law(justifiable acts, self-defense, emergent refuge, self-help, and victim's consent) and Article 761 of the Civil Law(self-defense and emergent refuge) and apply as the principle of offender's exemption). However, in case severe accidents(e.g., death), infringement by gross negligence, or physical and property loss greatly breaks social established rules and acceptability, it shall be bear civil-criminal liability.