미국 사용자책임법리에 대한 고찰 -Restatement (third) of Agency의 개정초안을 중심으로-

Abstract

Viewed as a doctrine within the law of agency, respondeat superior is a basis upon which the legal consequences of one person's acts may be attributed to another person. respondeat superior assigns responsibility to the employer for the legal consequences that result from employees' errors of judgment and lapses in attentiveness when the acts or omissions are within the scope of employment. The doctrine has close relation with apparent authority as well as vicarious liability. Unlike the Korea, apparent authority and respondeat superior are considered as overlapping vicarious liability doctrines in the United States. However, the recent attempt to revise the Restatement of (third) Agency is expecting to make close the doctrines of both countries. The American Law Institute's Restatement (Third) of Agency, have concluded that apparent authority and respondeat superior are mutually exclusive in the context of employee fraud. They have concluded that an employer may be liable via apparent authority, but not via respondeat superior, for its employee's fraudulent transactions. In this paper, I explain the revision and compared the similarities of both countries. In conclusion, the similarities of both countries respondeat superior result from the reflection of the appearance weighed policies. This trend seems inevitable in this agency developed industrial societies.