공동불법행위자 중 일부의 책임제한 가능성 - ‘기여도 감책론’에 대한 분석을 중심으로 -

Abstract

In the event of joint torts involving an indivisible damage, the joint tortfeasors are jointly and severally liable under Article 760 of the Korean Civil Act. At this time, even if the intervention of some of the joint tortfeasors was due to very slight negligence compared to other tortfeasors, he or she would still be responsible for the whole damages incurred. On the other hand, in recent years, some lower courts and the Supreme Court have ruled that the liability of some joint tortfeasors is limited due to the fairness of damages sharing. For example, in the Supreme Court Decision of June 27 in 2016, the Supreme Court confirmed the causal relationship between the negligence of the police officers and the death of the victim in the case of the victim being brutally murdered by a criminal. Accordingly, the judgment was concluded by limiting the percentage of the national agency's liability to the victim to 30% of the total damages. This article begins with an analysis of the ruling of the Court, although different from past Supreme Court rulings, do not seem to change the existing position. But the study on reducing the liability of tortfeasors with slight negligence can be a sufficient momentum to realize that it is still a topic of avail. In this paper, firstly, I analyzed the reasons why the contribution rate assessment did not get favorable. In this analysis, the discussion of our academy and courts, which sees the intent of the legislative act of Article 760 of the Civil Code and its meaning, could be reviewed. Furthermore, this article discusses the relationship between the meaning in Article 760 (1), the existence of a causal relationship and the limitation of liability, and the legitimate attempts. This suggests that the contribution rate assessment can still be a meaningful subject and confirms the need for a theoretical review of the applicable area and the joint and several liability in relation to the application of Article 760 of the Civil Code.