건물설계자ㆍ시공자의 건물매수인에 대한 불법행위책임 - 일본판례의 동향과 관련하여-

Abstract

As in the past, in the event of damage to third parties by the construction of a building contractor, the person who has ordered the work may be responsible for it. In particular, the liability of the person who has ordered the work can be found from the following sources∶The Korean Civil Code(hereafter, shortly KCC) Article 757 conditional provision and Article 756 and 760. However, the relationship of these responsibilities is the result of a series of implementation process of the debt, so it was a limited problem whether employer's liability is recognized or not. In other words, the person who placed an order for a work to be done shall not be bound to make compensation for any damages caused to a third person by the contractor with respect to such work. Provided, this shall not be the case, if the former was guilty of gross negligence in placing the order, or in providing instructions. Moreover, Employer's liability for damages shall not be the case, if the employer has exercised due care in the appointment of the employee, and the supervision of the undertaking, or if the damage would have resulted even if due care had been exercised and a person who supervises the undertaking in place of the employer shall also assume the same liability. Therefore there is a need to discuss that a third person bought the building is able to demand responsibilities to contractor who design and construct defective buildings as a tort liability. Related to the above discussion, Lately the Supreme Court of Japan declared in a case(Heisei 19. 7. 6.) that despite the contractual relationship- between the person who has ordered the work and contractor who design and construct defective buildings, contractor has admitted liability in tort to a third person bought the building. But along with an earlier lower Court ruling and decision was significant as it came after a series of inconsistent rulings. This study aims to explain the liability in tort between contractor who design and construct defective buildings and a third person bought the building. The conclusion is that contractor who design and construct defective buildings should protect a third person bought the building and avoid damages by keeping duty of care concerning fundamental safety of buildings.