행정책임의 사회화에 대한 연구 - 프랑스를 중심으로 -

Abstract

The development of objective responsibility marks the decline of the fault and the transition to a modernized accountability, risk-based and mainly oriented towards satisfying the interests of victims. The Civil Code of 1804, and in particular in Article 1382 Civil Liability closely links the concept of fault. Indeed, what is striking in our time is the importance of the rules on civil and tort. Much more than in the past, man today is looking liable where the injury was caused. Each of us would be obliged if he has wronged his neighbor, to put things in order, to repair all the damage done by his fault. But the damage can only entraîner a private law liability. These damages are more numerous and varied and are sometimes caused by accidents "anonymous", but that any fault can be established. This is the concept of risk that appears. More than "responsibility", we speak of "compensation". From an objective point of view, the concept of risk will supplant that of fault; it is the victim that you look rather than on the wrongdoer. This will highlight the will increasingly enhanced to provide compensation to the victim. If the fault is in positive law introducer element of tort, it is nevertheless a decline, a priori fault liability in favor of objectification of responsibility. The expression of the socialization of risk comes from the EC public report of 2005. This development was added other compensation schemes, where the liability actions are insufficient or inappropriate, compensation fund systems set up in the name of national solidarity (eg victims of personal injury due to a criminal offense, acts of terrorism, contamination by blood products, diseases due to asbestos). It therefore creates funds, compensate the victims and have recourse against the person or persons responsible. The financial limits. The paradox, according to the report of the CE is that enhancing security often leads to an increase in demand for prevention and coverage. Out very quickly one encounters financial difficulties, and ultimately to the refusal of individuals to finance risk they are not always responsible or do not affect them. So it is in the office of the judge and legislator, to achieve a balance between responsibility and socialization of risk. Maintaining fault liability. The 2005 CE Report is very explicit: the fault is not disappearing, it is instead increasingly invoked and accepted with repair potential or increased integral. One wonders indeed increasingly repair individual damage at the expense of strict liability. These applications are supported by the decline in gross negligence, which marks a trivialization of the offense of public service. Finally, although the establishment of compensation funds involved in the socialization of risks, but the recourse actions made available to these funds are based on fault liability. Today we are in an even brutal situation in Korea. Thus the French model will benefit for us to derive lesson.