과실불법행위로 인한 경제적 손해의 배상- 대법원 1996. 1. 26, 94다5472 (소위 송전케이블 사안)의 평석 -

Abstract

One of basic tasks in modern studies on torts is laid in how to understand standards and principles for settling its scopes on the compensation for damages. In other words, settling the compensation for damages on torts is a matter of how to decide damage’s subjects and contents, and Article 763 of our Civil Law is making it decided by applying correspondently to Article 393 of the same law on insolvency. That is, it is interpreted such like compensation for damages owing to illegal acts is limited to ordinary damages, and limiting compensation principle is being adopted by clearing the compensation’s responsibility only when predictable possibilities are accepted such like the injurer knows or could recognize its situations. As our Civil Law is taking limiting compensation principles, and further its Article 750 is interpreted as supposing illegal act’s types of so-called pseudo-responsibility, established requirements of illegal acts and settling matters on compensation scopes have to be combined, integrated, and understood to some extents, not being classified strictly. In fact, viewpoints that established requirements on torts and compensation acts’ settlement are different could be interpreted properly in case of taking perfect compensating principles like German code, or our interpretation on compensation for damages is read as aiming at perfect compensating spirits and considering it as implementing values of legal policies at least. But, our civil law systems on torts is quite different from Germans’. These differences in viewpoints could become problems when it is put on established requirements of illegal acts and compensation scopes together. For example, so-called indirect victim’s problems or economic losses are representative modern torts, and it could be said as being belonged to established requirements on illegal acts and boundary scopes of compensation scopes really, and thus these viewpoints shall be considered to such interpretations. On the other hand, though legal theory’s explanations and interpretations are important in compensation theories in which its positive and negative characters are discussed directly, but these matters have characteristics of requiring fields such like searching for axiology of legal policies called fair shares on damages are expressed and necessary as essential compensating principles in more fundamental tort liability act. Ultimately, tasks of modern legal principles composing systems on tort liability act and explanations on compensating ones existed in its background cannot but be added in the above boundary cases. Among them, this study will grope for a solution matching with the above task by taking a meaningful judgment of our Supreme Court that can be evaluated as a representative case on the economic loss as a subject. Merely, this study will discuss about economic losses in negligent torts after limiting discussed objects, and look into cases of economic damages occurred to indirect victims in priority when direct victims suffered from asset infringement corresponding to economic- damaged matters of indirect damage type on this research, that is, cases of economic losses belonged to the above object judgment. However, the study will describe developing aspects of discussions and characteristics from comparative laws on the generalization on economic loss required for discussing, and research, review on compensation scope theories differentiated to each case type. Therefore, this study clarifies its concepts by taking compensation theories on economic loss as a theme, categorizing issued cases, and roughly investigating on compensation discussions from each country according to types of economic loss. Through these investigations, this study will evaluate and interpret compensation theories on economic loss having been appeared in our judgment while looking into applications to our laws, and aim to suggest a proposition on the economic losses’ compensation that is fit to our legal systems finally.