여행주최자의 안전배려의무의 내용과 한계 - 프랑스법에서의 논의를 중심으로 -

Abstract

In Korean civil code, there are regulations on travel contracts. However, it is not clear to what extent the categories of travel contracts that the civil law intends to undertake and regulate. There is no standard for determining in which case there is a violation of the security obligation of the travel agency. However, it stipulates only the guarantee of the tour organizer, which can be understood as falling under the so-called ‘strict liability’. Therefore, despite the fact that the traveler's safety is the most essential content in the travel contract, it remains a task to be solved on what content and grounds the travel organizer's security obligation for travelers can be understood and explained. In fact, in the event that damage has been extended to the life, body, and property of the traveler due to the poor contents of the travel product, the Supreme Court of the Republic of Korea judges that the travel organizer has violated the security obligation for the traveler. However, the Supreme Court did not disclose a clear position on the content of the security obligation of the travel organizer and the criteria or grounds for judging whether or not to violate the obligations. Based on such problem recognition, the purpose of this study was to specifically present the contents and limitations of the travel organizer's security obligation. And for this purpose, the solution in French law was mainly examined. In fact, according to general theories and attitudes of precedents in Korea, it is said that the security obligation of travel organizers can be a problem in the field of ‘the common law liability’, which requires the debtor's fault. Therefore, a traveler who is a victim of poor travel products can be relieved of damage only by proving that there has been a violation of the travel organizer's security obligation. In other words, the travel organizer's security obligation corresponds to ‘the obligation of means’ in that sense. However, only the result of not completing the trip safely can be said to be a violation of the security obligation of the tour organizer. In order for the tour organizer to escape responsibility, if the tour organizer has to prove that there was no fault in caring for the safety of the traveler, that is, if the security obligation could be understood as ‘the obligation of results’, the traveler's damage relief can be made more easily. In other words, as long as the travel organizer's security obligation can be logically constituted as ‘the obligation of results’ rather than ‘the obligation of means’, in the conclusion, the responsibility of the travel organizer can be managed with ‘strict liability’ rather than ‘fault-based liability’. Therefore, this study analyzed in detail the solutions in French law, which constitutes such a logic. Finally, if we consider that the travel contract prescribed by the Korean Civil Law is similar to the package tour under the French Travel Law, it is possible, in applying Korean law, to come to the conclusion that it is possible to admit the responsibility of the tour organizer as long as the tour organizer fails to prove that the damage suffered by the victim is not due to the violation of the security obligation of the tour organizer.