미국법상 공동불법행위자의 책임제한에 관한 연구 -대법원 2010.1.28. 선고 2007다16007 판례를 중심으로-
Research on the Joint Tortfeasor’s Liability Reform in the United States
0
조회
0
다운로드
13
인용
0
참고문헌
키워드
초록
Joint and several liability has long recognized that tortfeasors who act in concert, who independently contribute to a single indivisible injury or who otherwise share responsibility for the wrongful act can be held liable for the entirety of a plaintiff’s damage. In Republic of Korea, professors and judges established legal theory and res judicata which provide that if concurring or successive acts of negligence of numerous persons combined together caused the plaintiff’s injury, he may recover damages of either of both, and neither can interpose the defense that the prior or concurrent negligence of the other contributed to the injury. In decision 2007Da16007 Korean Supreme Court, however, sentenced differently without en banc. It is unclear whether the Court imposed the tortfeasors’ liability separately based on individual contribution of the damage or comparative responsibility. The author insists that 1) the Supreme Court supposed to sentence the court decision in en banc, and 2) need to reform current legal theory and res judicata on the joint and several liability of tortfeasors.
Abstract
Joint and several liability has long recognized that tortfeasors who act in concert, who independently contribute to a single indivisible injury or who otherwise share responsibility for the wrongful act can be held liable for the entirety of a plaintiff’s damage. In Republic of Korea, professors and judges established legal theory and res judicata which provide that if concurring or successive acts of negligence of numerous persons combined together caused the plaintiff’s injury, he may recover damages of either of both, and neither can interpose the defense that the prior or concurrent negligence of the other contributed to the injury. In decision 2007Da16007 Korean Supreme Court, however, sentenced differently without en banc. It is unclear whether the Court imposed the tortfeasors’ liability separately based on individual contribution of the damage or comparative responsibility. The author insists that 1) the Supreme Court supposed to sentence the court decision in en banc, and 2) need to reform current legal theory and res judicata on the joint and several liability of tortfeasors.
참고문헌 (10)
- 김기수, "공동불법행위론의 비교법적 특징", 법학논집, 6 (1989), 한양대학교 법학연구소
- 김대규, "공동불법행위의 성립요건", 기업법연구, 11, pp.283~301 (2002), 한국기업법학회
- 김준호, "민법강의" (2010), 법문사
- 김학동, "공동불법행위에 관한 연구 ― “공동”의 의미에 관한 판례를 중심으로 ―", 비교사법, 10(2), pp.193~238 (2003), 한국비교사법학회
- 김규완, "민법학강의(제10판)" (2011), 신조사(서울)
- 서광민, "共同不法行爲의 성립요건", 민사법학, (41), pp.401~450 (2008), 한국민사법학회
- 위계찬, "고의에 의한 불법행위와 과실상계", 법학논총, 25(1), pp.117~136 (2008), 법학연구소
- Michael P. Addair, "A Small Step Forward: An Analysis of West Virginia’s Attempt at Joint and Several Liability Reform", W. Va. L. Rev, 109, pp.831~ (2007)
- Marcel Kahan, "The Incentive Effects of Settlements under Joint and Several Liability", Int'l Rev. L. & Econ, 16, pp.389~ (1996)
- Nancy C. Marcus, "Phantom Parties and other Practical Problems with the Attempted Abolition of Joint and Several Liability", Ark. L. Rev, 60, pp.437~ (2007)