EU 불법행위법 통일 논의와 동아시아에서의 통일 모색

Abstract

1. The modernization of the Civil Code There increases a demand for the unification and modernization of the civil law in the age of globalization. For many years contract law has been the primary issues of comparative research and thus contract law has become the first aim of successful attempts to unify private law. Torts, too, have become a main area of legislation and of intensive comparative research in EU. 2. The unification of Tort Law in EU The ‘European Group on Tort Law’ and the ‘Study Group on European Civil Code’ have worked for the unification of tort laws. Such two working groups are using an approach analogous to that of the Lando Commission on European Contract Law. They aimed to harmonize each tort law of EU countries. Both the Study Group and the European Group are presenting proposals for Principles of European Tort Law that are conceptually and methodologically and structurally unified. This article will review recent reforms and enactments in Tort Law of Civil Codes of East Asian countries, i.e. Korea, Japan and China in particular. It is the subject matter to grope the way to harmonize and to unify the tort law. 3. The reform of the Japanese Civil Code Japanese Civil Code is showing a good example modernization of civil law in the "new era of codification." However, Japanese Civil Code has not had overall revision other than in the field of family law since the codification. Japanese Tort Law is similar to Korean regarding the content and system of Tort Law because of historical background. It is not difficult to study as a comparative law because of its similarity to Korean Tort Law. Japan also has made an effort to modernize its civil code. In 1990s, people have called for an civil code to be understood easily. In response, Japan enacted the" Modernized Language Act" in 2004. The modernized Japanese Civil Code of 2004 has brotght various changes to the pre-existing Code in the formal aspect. Recently, Japan drew up a civil law draft to reform its civil code. However, Japan focuses on the reform of contract law. 4. The reform of the Korean Civil Code Korean Tort Law has not been amended since the establishment of the Civil Code in 1958. Korean has dealt with the disputes related tort through the special law and the precedents. The characteristics of Korean Tort Law are the general rule of liability for fault, the distinction of fault and wrongfulness, general clause, damages for property and non-property(§KBGB 751·752). There are Traffic accident liability, Environmental Policy fundamental Act, The Mines Act, Product Liability Act, Nuclear Energy Damages Act as a special tort law. Korean Supreme Court has mitigated the general conditions of liability, i.e., negligence, wrongfulness, causation, damages. It has adopted occasionally the theory of the presumption of fact and probability of the causation on professional liability, environmental liability, product liability. In March 1993, the Korean Assocation of Civil Law has organized the committee to promote the revision of the Civil Code. The regulation of the strict liability, the guardian liability on minors with responsibility. the user's liability, joint tort, the scope and means of damages. However, this work has not connected to the concrete result. Afterwards, Korea tried to amend such provisions of its Civil Code as involving property and obligations in 2004. However, it failed to reform its Civil Code because of the National Assembly. Korean government started reforming its civil code from 2008. 5. The draft of the Chinese Tort Law Chinese government is now ready to maintain the tort law to change and reform the Civil Code. China still has relied upon general civil provision, special tort law and judicial interpretation. Chinese government announced a detailed draft of Tort Law based on the mixture of civil law and common law in 2008. It is said that it combines the advantages of civil law and common law with China's actual situation, which forms the unique characteristics of China's torts law system. It has both general clauses and typical clauses regarding negligence liability and strict liability. There are 12 chapters and 88 provisions in the draft. There exist many provisions such as Product Liability Act, Traffic Accident Liability Act, Environmental Pollution Liability Act, Excessive Danger Liability Act. 6. The Trial of the unification of Tort Law in East Asia It may be necessary to discuss the Unification of Tort Law in East Asia when we consider that the transfer of goods and human beings increases among these three countries. Although a lot of difference exist in view of, for example, socio-economic conditions, legal systems, political structures, there is a more need to make an effort to harmonize and unify the Civil Codes. Nowadays, the mixture and harmonization deliquescence are the worldwide trend. Three countries belong to the continental legal system. However, Korea and Japan have the Civil Code as the Pandekten system and China does not have the Civil Code yet. It will be an important goal for the unification of Tort Law to harmonize and assimilate. First of all, it needs to organize the Study Group on East Asia Tort Law of three countries to work unification. Second, The result of research will be exchanged and co-owned after scholars of three countries study their own domestic tort law. Third, the unification of Asian Tort Law will be made in view of the harmonization. Main issues will be following. The distinction of fault liability(individual sector) and strict liability(enterprise sector), individual protection and consumer protection, the scope and the extent of the legal interest, the relation between negligence and wrongfulness, causation, the acknowledgement of punitive damages. any other remedies including damages. Eventually, it may result from 'Principles of East Asian Tort Law' through of East Asian Group on Tort Law(EAGTL).