과실상계에 관한 연구 : 불법행위를 중심으로(제763조)

Abstract

1. According to §396 Korean Code Civil, (Compansatio Culpae) If there has been any fault on the part of the obligee in regard to the non-performance of the obligation, the court shall take it into account in determining the liability for and assessing the amount of damages. The provision of Article 396 shall be mutatis mutandis to claim for damages caused by an unlawful act(§763). This provision(§763) has many legal interpretational problems. It is so especially on necessary condition of comparative negligence.

2. This paper has attempted at comparative and literature study on American, Japanese, Korean legal system to solve this problems.

3. Interpretational problem includes : (1) Ability of plaintiff(sufferer) for comparative negligence, (2) Legal significance of plaintiff's fault, (3) Is it possible plaintiff's physical factor to be an object of comparative negligence? How should be legal effect when third part's conduct or an accident had been intervened in occurrence of damage? (4) Does it could be comparative negligence in spite of defendant(wrongdoer) having done an unlawful act intentionally or in malice? (5) In area of liability without negligence, that is, in sphere of strict reliability, Is it possible comparative negligence? (6) Is Plaintiff"s side(closest associates) to be recognized to what extant? (7) Could causal relation between plaintiff's fault and damage be fulfilled only with a conditional relation, or does it still more need a considerable relation?

4. Conclusions: (1) It needs lower intellectual level(ability), that is, ability of reasonable judgement, in compansatio culpae than ability of reliability of offender in tort. There isn't a substantial standard of distinction between ability of reasonable judgement and ability of reliability in tort. It is only insisted upon age of plaintiff as a formal standard. It has used to substituted liability of supervisor for this ability in case lacks ability of reasonable judgement in plaintiff. (2) Concept of plaintiff's fault is different meaning compared with offender's negligence in legal theory. But this concept in Korean judicial case would be treated without a big discrimination in spite of conceptional distinction. (3) Plaintiff's physical factor should not be object of comparative negligence. Neither third part's conduct nor an accident. it is not implied a plaintiff's fault. But as it is inequitable to judge without considering such a circumstances, these factors should be taken into account at step of damage assessment. (4) In an unlawful act intentionally or in malice could be considered comparative negligence. Legal relation can be broken off in case of intentional wrongdoing generally but always it is not so. Therefore plaintiff himself should bear the responsibility of his fault. (5) In sphere of strict liability should be considered comparative negligence. otherwise defendant has to act on his own responsibility about fault of another person. It needs no repetition here that is unfair. (6) Plaintiff"s side(closest associates) should not be recognized widely unless other provision. Especially it should be denied between husband and wife, in legal or in illegal spouse. (7) Causal relation between plaintiff's fault and damage could be fulfilled only with a conditional relation. Looking-method on legal relation is generally a behind-observation. This point can be different from Looking-method on negligence standardizing at that time of unlawful act. Subject of behind-observation method is a judge in charge in lawsuit. It doesn't make a big differentiation compared with theory of considerable relation.

Key words - comparative negligence, plaintiff's fault, plaintiff's physical factor, unlawful act intentionally or in malice, ability of reasonable judgement.