불법행위 위법성 판단에 있어서 보호되는 이익 - PETL 제2:102조를 중심으로 -

Abstract

In determining whether a person's behavior constitutes illegal in tort law, the conventional theory takes the correlation theory in defining ‘wrongfulness’, and the Supreme Court compares and sentences various factors that appear in specific cases. The wrongfulness of tort law is often defined as a violation of the legal order, and it is difficult to present uniform standard in that the factors to be considered vary in specific cases. However, even considering the above circumstances, setting and categorizing factors that should be generally considered in judging wrongfulness will be useful in analyzing new cases that arise due to the development of modern society. Based on the above awareness of the problem, this article uses Germany's “Flexible System” and Article 2:102(Protected Interest) of the Principles of European Tort Law (PETL) as the subject of the study. Article 2:102 stipulates four factors: ① the nature of interests, ② the nature of liability, ③ the interests of the actor, ④ public interests. The nature of interests means the size and the sequence of interests, and the degree of protection varies according to the precision of its definition, its obviousness, and proximity between the parties. Additionally, the nature of liability, which means whether the infringement is caused intentionally or negligently, is also an important factor. Next, this article examines how the Supreme Court of Korea judges wrongfulness in each specific legal interest. The Supreme Court states that “the nature of the interest” and “the aspect of the infringement act” should be considered, and lists factors according to individual cases. Moreover, the Supreme Court also considers the nature of liability as well. In addition, under the influence of the German Civil Code Articles 823 and 826, the wrongfulness is determined under the concept of 'violation of public morals' in some cases related to rights with ambiguous boundaries. Based on this analysis, we can find that the elements of Article 2:102 can work as frameworks in classifying the factors that should be generally considered in tort law by sorting out the factors to ‘the area of infringed interest’ and ‘the area of act of infringment’. Finally, the article attempts to apply the above framework to the specific cases the Supreme Court recently sentenced. Through the above attempts, we hope that more detailed standards in analyzing what human behavior should be regarded as ‘wrongful’. Based on this article, we hope discussions about the elements of tort law be further revitalized.