영미법상의 공동불법행위에 관한 연구

Abstract

This article deals with the liability of multiple tortfeasors for the same injury in the American Law. It aims at gaining some perspectives which could help interpret and develop our own tort law. The current American tort law has departed from common law rules in many points. The scope of joint and several liability has been limited to intentional torts, torts out of acting in concert, vicarious liability etc. For independent tortfeasors who are liable for the same harm, many states adopt hybrid liability system with various contents: reallocation of insolvency burden, threshold requirement for joint and several liability, or joint and several liability only for economic damages etc. Instead of rigid rules of common law they adopt flexible and reasonable ones: while, for example, the intentional tortfesor was not entitled to contribution until Rest. 2nd Torts(1979), but this rule has been removed in Rest. 3rd Torts(Apport.)(2000). From the trend of changing american tort law we can get many useful points of view. According to decisions of korean courts, independent tortfeasors have the same status as the tortfeasors acting in concert. It is but hard to understand why an independent tortfeasor should bear the burden of insolvency of another independent wrongdoer. And korean courts hold that a negligent tortfeasor(A) can be jointly and severally liable when A’s act gave assistance to another wrongdoer(B) even though A didn’t know about the B’s harmful act or even B. They think it justifiable only because the result is more favorable to the injured. But it costs inevitably the burden of the defendant, who doesn’t have to pay more than his due liability. We should now consider whether above-mentioned decisions of korean courts are acceptable as reasonable methods of allocating responsibility among multiple tortfeasors.