사용자책임의 입법론적 쟁점

Abstract

The Section 756 of Korean Civil Code regulating the vicarious liability for auxiliaries are analysed in the view point of its legislative concern in this paper. It is suggested that the regulation of the liability referred to above should be differentiated between a general relation of employment and an enterprise relation. The important details of the suggestion offered in this paper are as the followings. The vicarious liability in the general relation of employment should be based upon the fault liability including negligence liability and intentional liability, but the enterprise liability should be included into the scope of strict liability. The general relation of employment should be recognised by employer's objective and normative possibility of designation and supervision or control of his or her employees; the enterprise relation by his or her incorporation of them in its organization. The Section 756 should be revised and applied only for the general relation of employment; a new section should be legislated for the enterprise liability. The Section 756 should be revised to require explicitly the negligence of the employees for the general vicarious liability for auxiliaries; the employer's defense of no fault in his or her designation and supervision or control of his or her employees should be allowed; the employer's claim for their reimbursement in the general relation of employment may be properly confined because the liability in such a relation is based upon the fault of the employer. In the new section for the enterprise liability, the negligence of the employees may not be required for the employer's liability; the employer's defense referred to above may not be allowed; the employer's claim for reimbursement of his or her employees should be excluded or strictly limited.