실화책임에 관한 법률을 둘러싼 판례의 동향과 입법론적 고찰

Abstract

The general illegal activity system seeks to guarantee an individual’s right to free activity to its maximum according to the ‘principles of civil liability(Verschuldensprinzip)’ which means if a person is not to blame, he or she doesn’t have to take the responsibility for it. However, due to the acceleration of economic expansion as well as complex and multiple developments within the industrial societies, new types of damages (for examples, environmental pollution injuries, medical casualties, and accidents which can happen in various dangerous industrial facilities) have emerged. It is common knowledge that various special laws have been enacted such as the presumed misadventure or the liability without fault (absolute liability) in order to protect the injured party. Apart from these trends in legislations and principles of law interpretations, the law regarding accidental fires take on the stance that the wrongdoer does not take the blame unless it is an incident of a gross negligence nature. By this, the law appears to protect the instigator rather than the victim. Then, is the legislation purpose of the ‘accidental fire liability law’ which is different from general cases of legislation where liability is the norm for any illegal activity, really justifiable in that it acknowledges exception to the rule about liability? The constitutional court declared that the ‘accidental fire liability law’ does not concur with the constitution last year. With the discord sentence on this law which put a stop to the execution of the said law in all law courts, any other national institutions, and local autonomies until the legislators eliminated the unconstitutionality of this law, it can be said that the discussions about the question of justifiability of the ‘accidental fire law’ up to now is being carried out at the government level. It is true that the law has come a long way in terms of its remarkable headway compared to the time of the legislation of the ‘accidental fire liability law’ in the beginning where most of the buildings were constructed with wood. Also, in light of innovative fire prevention technology and generalized insurance policies, it is highly questionable whether a strong evidential basis for the retention of the ‘accidental fire liability law’ still exists. This paper has the objective of improving on the legislative theory regarding the ‘accidental fire liability law’ based on the above mentioned rationale. The scope of the paper are as follows. First, the legislation cases of representative nations surrounding the legislation intent of the ‘accidental fire liability law’ and its liability are looked closely into. Second, tendencies of judicial precedents regarding the ‘accidental fire liability law’ is critically inspected. Thirdly, theories regarding the justifiability of ‘accidental fire liability law’ is scrutinized and finally, some personal views (in eventually abolishing the ‘accidental fire liability law’ and suggesting alternative solutions in accordance with civil law theories)have been presented.