불법행위법상 과실책임에 관한 소고

Abstract

The tort liability arising from negligence doesn't accord with today's negligence idea. However, throughout from Culpa in Rome law to Justinian Code, the foundation of the negligence idea was established because the negligence idea was fixed carefully by Father. And then also the negligence idea became the tort principle as a general legislation by legist insisting the law of nature. After that, the modern Civil Code, like civil law of France and Germany, enacted this negligence idea as general articles on tort, the principle of negligence liability. In article 750, Korea also makes the common rule on organization condition for tort by providing like this : the tort who purposely or negligently injuries somebody are liable for the damage. (According to the article 750, Korean Civil Law, there is a common rule on tort existance condition by providing like following : Someone who injuries the others intentionally or negligently is liable for the damage on tort.) But in Korea we don't have any regulated idea on the negligence, so we can't help following the theory and case law. Consequently there are objective negligence(a theory of majority and a point of view from precedents), subjective negligence and a theory of constituent. When we think of it, a community will destroy and the civil life will come to crisis soon. In other words everyone should be able to believe that anyone controlled according to the law will act with the general person's knowlege and ability at least. If a harmful act can escape from the negligence liability with regard of his indivisual affairs, the confidence will break down and further weeken the legal stability. Therefore in article 750, civil law, negligence isn't decided by the person's specific/definite affairs but is defined as violating the caution liability which every general person should take care.