未成年者가 被害者인 不法行爲에 있어서 損害賠償請求權의 消滅時效-比較法的 考察과 民法 제766조의 解釋論-

Abstract

This article is a comparative study between Anglo-American and Korean law on the extinctive prescription and the limitation of actions focusing children's tort actions. The Korean Civil Code regulates the basic principles in Article 179 and 766. Article 766(prescription for tort liability) regulates that the right to demand compensation for the damage from a tort shall lapse by prescription if not exercised within 3 years from the time when the injured party or such party's legal representative became aware of such damage and the identity of the offender; the same shall apply if 10 years have elapsed from the time when the tort was done. Article 179(extension of prescription for minors and/or disabled person) regulates that the prescription shall not be completed against minors and/or disabled person without a legal representative or within 6 months from the time when the person becomes fully capable or gets a legal representative. Under these regulations children victims might lose their cases if their legal representatives, who are parents or guardians, did not take due diligence for the children within the prescription period. This result is not thought to be fair considering that the children do not have any options about their parents or guardian and that the parents or guardian could be in the conflict of interests. This article contains a comprehensive comparative legal study on the extinctive prescription laws, cases and legislations, in Anglo- American law jurisdictions and EU including US, UK, Canada and the Netherlands. As a conclusion the author suggests that Korean Supreme Court could solve this complicated issue with a broader adoption of the principles of discovery rule and a more strict application of the legal representative's eligibility in Korean Civil Code with regard to the extension of the extinctive prescription on the children's tort actions in Korea.