영미 불법행위법상 책임요건에 관한 연구 - 과실불법행위의 의무론을 중심으로 -
A Study of Tort Liability in Anglo-American Legal System - Focused on Argument of Duty of Care in Negligence Liability -
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The purpose of this paper is to make a survey of the tort liability in the Anglo-American legal system in oder to confirm whether the element of wrongfulness plays a major part in the system or not. Some defenses against the liability for the negligence or intentional torts in the system are the counterparts of the grounds on which the wrongfulness is eliminated from the result by or behaviour of the tortfeasor in the Korean and German tort system. In the course of the project, the argument in the negligence liability system could be properly divided into three sections including 'duty of care', 'damage' and 'cause'. The arguments in the duty of care include the standard and breach of the duty. The standard is the reasonable person' established more specifically by the attributes and circumstances. The breach of duty means that the defendant caused the unreasonable risk to the plaintiff. The Judge Hand' formula in Carroll Towing is properly used to determine whether the plaintiff was exposed to the unreasonable risk by the defendant. The arguments in the Anglo-American legal system could be helpful for the more elaborate analysis of the elements of negligence liability in the Korean tort law.
Abstract
The purpose of this paper is to make a survey of the tort liability in the Anglo-American legal system in oder to confirm whether the element of wrongfulness plays a major part in the system or not. Some defenses against the liability for the negligence or intentional torts in the system are the counterparts of the grounds on which the wrongfulness is eliminated from the result by or behaviour of the tortfeasor in the Korean and German tort system. In the course of the project, the argument in the negligence liability system could be properly divided into three sections including 'duty of care', 'damage' and 'cause'. The arguments in the duty of care include the standard and breach of the duty. The standard is the reasonable person' established more specifically by the attributes and circumstances. The breach of duty means that the defendant caused the unreasonable risk to the plaintiff. The Judge Hand' formula in Carroll Towing is properly used to determine whether the plaintiff was exposed to the unreasonable risk by the defendant. The arguments in the Anglo-American legal system could be helpful for the more elaborate analysis of the elements of negligence liability in the Korean tort law.
참고문헌 (20)
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