受忍限度論의 法理 小考

Abstract

Illegality to claim indemnification for damage for a tort under our Civil Law is understood as a theory of correlation that it should be decided through interrelation between kinds of inflicted interest and those of inflicting acts. However, claim of indemnification for damage due to infringement on environment judges illegality by the theory of acceptance limit that there is a scope to accept to some extent when we get our social life, and it is illegal only when we get beyond the scope. In other words, the theory of acceptance limit means a limit that a rational man can endure while he leads a social life, which accepts illegality when an extent of infringement goes beyond the limit generally acceptable in leading a social life in respect with environmental pollution and nuisance. Acceptance limit can be used as a standard of judgement of illegality due to tort pursuant to Article 750, the Civil Law as well as a judgement of claim of a real right based on ownership pursuant to Article 214, the Civil Law, but it can be admitted only in the case of it having a legal ground or being due to the inflicter's exercise of right, but not be justified by acceptance limit on a socially accepted idea. Also a stage theory of illegality that illegality in exercising claim for prevention based on Article 217, the Civil Law should be severer than that of claim of indemnification for damage based on tort, Article 750, the Civil Law, which was developed in Japan, but it needs to be accepted in that claim for prevention directly prevents the social and economic activity of an obstructor compared to claim of indemnification for damage by money. The extent of acceptance limit can vary depending on the relief means of the victim, but all of it judges illegality based on a single standard of acceptance limit, so both claims can be uniformally understood. On one hand, a new theory of acceptance limit accepting intention and negligence including judging illegality at acceptance limit, actually recognizes a case of environmental infringement as absolute liability, so it is unreasonable, and liability for tort can be seen as constituted only it meets requirements of illegality as well predictability. To judge such a acceptance limit, whether it goes beyond acceptance limit should be decided taking into account public utility of inflicting company, locality, the order of priority of land use, special circumstance of the inflicted. continuance of infliction, observance of public regulating standard, evasion possibility of damage and measure of damage prevention of inflicting party.