불법행위로 인한 손해배상청구권의 소멸시효- 민법 제766조에 대한 비판적 검토 -

Abstract

As for the right to claim compensation for damages arising between parties without a contractual relationship, it is not easy for the claimant to obtain the relief by proving the requirements of tort. Besides, the statute of limitations might be exceeded due to the nature of illegal acts. Considering the legislative purpose of the statute of limitations in terms of legal stability, the extinctive prescription system under the current tort law has been reviewed from a critical point of view in terms of providing reasonable relief for victims. In the case of illegal acts, the statute of limitations in Germany, Japan, and the United States is explained comparatively, and an amendment to Article 766 of the Civil Act is proposed. There are two legislative directions for the extinctive prescription of the right to claim damages. One is to regulate uniformly the statute of limitations of the right to claim damages regardless of the cause of the claim according to contract liability and tort liability, and the other is to regulate the two separately. The Korean Civil Code seperates and stipulates the causes of different rights, namely default and tort. It is necessary to distinguish them even in the statute of limitations and adopt a dual regulatory structure. Regarding the adequacy of the subjective short-term prescription, which is currently 3 years(Article 766 Paragraph 1), as part of private autonomy, it should be recognized from the point of the right of self-determination of the claimant for damages, but to some extent it is a matter of policy judgement as to how long the short-term extinction prescription period should be, and five years is appropriate. Regarding the objective long-term statute of limitations(Article 766, Paragraph 2), it is meaningful in that the legal relationship can be confirmed regardless of whether the victim is subjectively aware of the uncertainty of damages in the field of torts, and considering that there are conflicts about extinction period of current 10 years in actual cases, it is necessary to extend the current 10-year period to 20 years. Regarding the starting point, in order to resolve the problem of the gap between the tortious act and the occurrence of damage, it is necessary to stipulate what is being resolved by the interpretation as ‘the date on which the damage occurred due to the tortious act.’ In addition, in the case of violations of serious legal interests such as life, body, freedom, and health, it is necessary to provide special regulation. In the case of a continuous tort, when damage is in progress, it is necessary to add the starting point of the extinctive prescription to the date when the proceeding is completed.