자연력 개입으로 인한 피해에 대한 우리나라의 사법적 구제의 현황

Abstract

This study considers the theory of the remedy status of civil law on damages by intervention of natural forces and a principle of law of judicial precedents. The following is a summary of results of the research:First, there is no choice of whether the establishment have to install or not. Although running a risk, it has attribute that cannot primarily eliminate a danger, it is ultimate purpose to reduce damage caused by natural forces to some extent through the utmost efforts. Second, in Judicial judgment, it is for foreseeable duties and preventive duties to serve to filter whether the responsibility is acknowledged or not. Although it is a matter of course in the light of the system of negligence judgment, there are some cases that regard either of foreseeability(foreseeable duties) and preventive possibility(preventive duties) as the factors of negligence judgment. Third, in the cases of the damage occurrence caused by natural forces, there are many instances causing damages by combination with natural forces, assailant’s fault and causation. However, since the judgment of assailant’s fault is different matter even if a competition is acknowledged, it is precedent position to judge autonomously the fault of state, local government, and assailant. Furthermore, in the cases of admitting the fault of state and assailant, it is judged to take an approach to take out the contribution degree of natural forces. However, it is precedent attitude that it is not allowed to deduction on contribution in the cases that can prevent damage without excessive efforts and cost involved. Forth, under Korean Civil Code §785 which regulates the establishment liability, it generally says that the responsibility of occupants or owner is imposed more severely. However, in the actual cases, it is uncertain how the stricter responsibility imposed. It is general to make them take legal responsibility with general tort liability(§750 in Korean Civil Code) even in the instances holding establishment liability or state liability. Finally, I want to point out that it is followed upon a principle of law of negligence liability in the actual precedents, although it seems to consider responsibility of establishment possessor as no-fault liability by understanding risk liability.