유료도로의 하자로 인해 발생한 손해와 청구권 - 손해전보를 위한 私法的 관점에서 접근의 시도 -

Abstract

Our first highway was built in 1968 between Seoul and Incheon in South Korea. But currently we have the superhighway network based on the rapid economic growth. In my opinion, anyone can not deny that the change improves the quality of life. Because of the importance of highway studies on the highway have not stopped. Equally the field of law cares deeply about the highway and problems about the highway is discussed by Jurist. They focus a debate on a relationship between State Compensation Act and Civil Act because of a difference of meaning, also structure in Civil Act and public structure in State Compensation Act. Art. 5 State Compensation Act: (1) In case any damage has been inflicted on another person due to defective construction or management of road, river or any other public structures, the State or local governments shall redress such damage. The provisions of the proviso of Art. 2 (1) and Art. 3 and 3-2 shall apply mutatis mutandis to this case. (2)In the case as referred to in paragraph (1), if there exists any other person who is to assume the liability for the cause of the damage, the State or local governments may claim indemnity from him. Art. 758 Civil Act: (1) If any damages have been caused to another person by reason of any defect in the construction or maintenance of a structure, the person in possession of the structure shall be liable for such damages. Provided, that if the person in possession has exercised due care in order to prevent the occurrence of such damages, compensation for the damage shall be made by the owner. (2) The provisions of paragraph (1) shall apply mutatis mutandis where there exists any defect in the planting or maintenance of trees. (3) In cases of paragraphs (1) and (2), the possessor or owner may exercise the right to obtain reimbursement from the person to whom the damages are attributable. This Article explained this relationship with general law and special law. In this Article it is proved why State Compensation Act is a special law. It tells its own tale that a special statute prevails over a general one. In this sense the application of Civil Act must be denied. Then a general tendency about Public-private partnership and his necessity were explained. In addition to this explain, obligations under the contract between highway user and State/Korea Expressway Corporation or private investor for PPP were evaluated.