DCFR의 비계약적 책임 (불법행위법)

Abstract

'The Study Group on a European Civil Code' and 'the European Research Group on Existing EC Private Law' have cooperated to produce 'Draft Frame Reference(DCFR)'. In the beginning of this year, they published a full edition of DCFR with 10 Parts. In this DCFR, this paper focuses on Part VI, naming 'Non-Contractual Liability Arising out of Damage Caused to Another'. Its content strictly consists of tort law. Part VI consists of 7 Chapters with 57 Articles. 7 Chapters are Fundamental Provisions, Legally Relevant Damage, Accountability, Causation, Defences, Remedies, and Ancillary Rules. Part VI looks different from preexisting tort law of countries in European and including Korea. In particular, Part VI regulates initially damages based on types of losses, then types of tortious acts. This means that DCFR focuses on the damages that tort law centers in rather than the acts that criminal law does in. Also, it means that DCFR tries to be independent from criminal law that tort law has followed in legal structure. Chapter 3 shows three types of tortious acts for accountability; intention, negligence, and act without intentions or negligence. In past, strict liability was included in tort liability under the special statutes rather than Civil Code. Chapter 4 allows the injured person's predisposition in cases of personal injury or death as a causation of damages. Chapter 5 collects all kinds of defences without classifying defences like in criminal law. In particular, the provision of necessity is different from Korean Civil Code by allowing the person causing the damage to be liable for the consequences of his or her necessary act. Finally, Chapter 6 provides two alternatives of compensations for tortious damages. First, reparation is to reinstate the person suffering the legally relevant damage in the position that person would have been in had the legally relevant damage not occurred. Second, as an alternative to an ordinary way of compensation, reparation may take the form of recovery from the person accountable for the causation of the legally relevant damage of any advantage obtained by the latter in connection with causing the damage. This provision allows the flexibility of tort damages by broadening the remedy of the injured. Part VI has showed the number of newly provisions to satisfy the true aims of tort law, the prevention of potential accidents and the full compensation of actual victims. Korean tort law should take the lessons and ideas from DCFR Part V for better and efficient tort law.