미국 과실불법행위와 인과관계 － 불법행위 보통법전집 제2판의 과실 규정을 중심으로 －
Negligence and Causation in American Tort Law ╶ focusing the Second Restatements of Torts ╶
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According to article 750 of the Korean Civil Code, “any person who has caused harm to another person by his tortious act, intentionally or by negligence, is liable to pay the damages. Therefore, the causation is necessary to make a tortfeasor liable for the damages with other elements of torts. However, the Korean Civil Code has not had a separate provision of the causation. Only through article 763, the article 393 (Scope of Damages in Non-performance) of the Korean Civil Code may be applicable by mutatis mutandis to tort claims. In this regard, drafters of the Korean Civil Code had attempted to treat the scope of tort damages as same as that of breach of contracts. But the provision in which treat scope of tort damages as same as that of non-performance, like the article 763 of the Korean Civil Code, has hardly found in any other comparative laws. Therefore there have been controversies such as pros and cons of the current article 763. The Korean Supreme Court has interpreted the causation of torts with the adequate theory, which has used the abstract criterion of “adequacy.” However, it has been very hard to provide an ultimate alternative causation theory. In this aspect, this author attempts to examine various aspects of the causation of negligence in American Tort law, especially focusing on chapter 16 of the Restatement (Second) of Torts. This chapter 16 of the Restatement consists of 40 articles, namely articles 430 through 462. The Restatement of American Law Institute has sections, comments, and illustration. While studying the necessary causation for tort law, this author provides the contents of sections, comments and illustrations. This article has four parts. In II. this author explains cause in fact and proximate cause in negligence torts. In III. this author studies factual cause, namely articles 430 through 434 of the Restatement of Torts. In IV, this author examines proximate cause or legal cause. They are articles 435 through 461 and 465 of contributing negligence in the Restatement. In V, this author summarizes what it has been submitted and attempts to find out what would be good to compare with Korean tort law.
Abstract
According to article 750 of the Korean Civil Code, “any person who has caused harm to another person by his tortious act, intentionally or by negligence, is liable to pay the damages. Therefore, the causation is necessary to make a tortfeasor liable for the damages with other elements of torts. However, the Korean Civil Code has not had a separate provision of the causation. Only through article 763, the article 393 (Scope of Damages in Non-performance) of the Korean Civil Code may be applicable by mutatis mutandis to tort claims. In this regard, drafters of the Korean Civil Code had attempted to treat the scope of tort damages as same as that of breach of contracts. But the provision in which treat scope of tort damages as same as that of non-performance, like the article 763 of the Korean Civil Code, has hardly found in any other comparative laws. Therefore there have been controversies such as pros and cons of the current article 763. The Korean Supreme Court has interpreted the causation of torts with the adequate theory, which has used the abstract criterion of “adequacy.” However, it has been very hard to provide an ultimate alternative causation theory. In this aspect, this author attempts to examine various aspects of the causation of negligence in American Tort law, especially focusing on chapter 16 of the Restatement (Second) of Torts. This chapter 16 of the Restatement consists of 40 articles, namely articles 430 through 462. The Restatement of American Law Institute has sections, comments, and illustration. While studying the necessary causation for tort law, this author provides the contents of sections, comments and illustrations. This article has four parts. In II. this author explains cause in fact and proximate cause in negligence torts. In III. this author studies factual cause, namely articles 430 through 434 of the Restatement of Torts. In IV, this author examines proximate cause or legal cause. They are articles 435 through 461 and 465 of contributing negligence in the Restatement. In V, this author summarizes what it has been submitted and attempts to find out what would be good to compare with Korean tort law.
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