공동불법행위의 체계와 민법 제760조의 재해석

Abstract

Along with default, tortious acts constitute the illegal legal elements that constitute the responsibility system of modern civil law. If the illegal act was committed alone, it is relatively easy to prove the requirements for liability for damages, and it is sufficient to hold only one perpetrator responsible. If there are multiple perpetrators, it is not so simple. Article 760 of the Korean Civil Act stipulates three types of joint illegal acts. However, it is necessary to reexamine whether this provision appropriately encompasses the types of joint illegal acts. This is because the multiple actors stipulated in paragraph 1 presuppose ‘joint’ involvement in the illegal act, and thus the essence of joint illegal acts can be discovered. However, paragraphs 2 and 3 only state that they are ‘not joint’ or ‘regarded as joint actors’, so it is questionable whether their acts can be recognized as joint illegal acts. The substantive meaning and independent status of each clause of Article 760 of the Korean Civil Act must be reinterpreted. The ‘mutual relationship of multiple harm acts’ as a prerequisite for the establishment of a joint tort and the ‘essence of liability for damages’ as a legal effect resulting from it must be considered separately. The former is an aspect that evaluates whether it can be recognized as a joint tort in the strict sense that requires examining the jointness of multiple acts. On the other hand, the latter is an aspect that determines whether the responsibility of multiple perpetrators who must compensate the victim will be divided according to the degree of their involvement, whether they will be independently responsible for all of it, or whether they will be jointly and jointly responsible. Simply put, the former is an element for judging the jointness of awareness or acts, and the latter is an element that stipulates the joint obligation of the perpetrators, that is, the insincere joint obligation. Article 760, Paragraph 1 of the Korean Civil Act is a case where joint awareness or action is recognized in the ‘mutual relationship of multiple harm acts,’ and it can be said to be a typical true joint tort that bears an ‘untrue joint obligation’ as the ‘essence of liability for damages.’ Paragraph 2 is a type where joint awareness or action cannot be recognized, but an ‘untrue joint obligation’ must be borne for the policy purpose of victim relief. Paragraph 3 is a type where jointness in direct action cannot be recognized, but jointness is assumed and an ‘untrue joint obligation’ must also be borne. In this sense, Paragraph 1 can be called a ‘true joint tort,’ Paragraph 2 a ‘quasi-joint tort,’ and Paragraph 3 a ‘joint tort.’ The true joint tort of the first paragraph requires at least joint action, the quasi-joint tort of the second paragraph does not require joint action or knowledge, and the joint tort of the third paragraph may differ in the content of the tort, but joint action or knowledge is acknowledged, and thus joint liability is assumed.