‘불법행위책임’과 ‘형사책임’ 체계의 분별에 대한 필요성 연구 - ‘책임능력’을 중심으로 -

Abstract

This paper emphases that tort law should be different from criminal law. This is because the tort law should be framed based on victims while criminal law based on actors. ‘Criminal Liability’ is based on the principle of 'contra value behavior', which determines how to decide whether to punish an act. 'Tort Liability’ is based on the principle of ‘contra value consequence’ which determines who is burdened with damages. In other words, 'Criminal Liability' is focused on whether it is rational to punish an actor for his action regardless of outcome. It can be said that ‘Criminal Liability’ is a system based on the perpetrator. ‘Tort Liability’ is focused on whether it is rational to impose liability regardless of whose action. It can be said that ‘Tort Liability’ is a system based on the victim. This paper is centralized with the defense of tort liability, the competency of ‘Tort Liability’. It is started with the comparison to the competency of ‘Criminal Liability’. The competency of ‘Tort Liability’ is supposed to differ from the competency of ‘Criminal Liability’ because of their characteristics. In fact, tort law and criminal law are similar to each in the point of view that both of them have played a role to interfere with socially unaccepted behaviors. Futhermore, tort law has traditionally followed the frame and interpretation of criminal law. Because of these, it is likely that the issue of competency in tort law is based on the stance of criminal law. Eventually, tort law in other countries has been independent of criminal law in a different and diverse ways. The regulation and interpretation for the competency of ‘Tort Liability’ is an excellent example how much tort law is different from criminal law. It comes from the competency of ‘Criminal Liability’ such as the minority and insanity. This issue in criminal law makes it likely to exempt from criminal liability because it is about the blamefulness of an actor. If he or she is not qualified to understand penal penalty, his or her criminal liability is unlikely imposed. The competency of ‘Tort Liability’ is supposed to be totally different from one of ‘Criminal Liability’. This is because the victim must be endured with his or her damage if the actor is excused with his or her tortious liability. Two kinds of responses are shown in most of jurisdictions. First, the competency of ‘Tort Liability’ has basically followed with the competency of ‘Criminal Liability’. The minor or insane actor is excused with his or her tortious liability like in criminal law and his or her legal supervisor is vicariously liable for his or her protege instead. Second, the competency of ‘Tort Liability’ is not allowed contrary to criminal law. Basically the actor is liable for his or her tortious outcome regardless of his or her age or mental deficiency and additionally his or her legal supervisor is jointly and severally liable for his or her protege. The second option is more likely to protect tortious victims than the first option. The second one is based on the protection of victim while the first one on the protection of actor. The first one is a traditional point of view based on criminal law while the second one is an independent point of view from criminal law. European law and common law is close to the second option while Korean and Japanese law to the first option. This article has studied to find out how much tort law in Korea is different from criminal law and what tort law in Korea has pursued by comparing other jurisdictions.