신뢰의 원칙과 그 적용한계에 관한 고찰

Abstract

The principle of trust was developed by judicial precedent concerning with the restrict of duty of care in negligence criminal. In this thesis author studied about the meaning and function of the principle of trust, the contents of objective duty of care, the standard of judgment in violation of duty of care, the systemic position of the principle of trust, the application requirements and application limit of the principle of trust, judicial precedent of Korea about the principle of trust. Author studied mainly the principle of trust in road traffic. When the driver's violation(for example overspeed etc.) of traffic rule exist, judicial precedent denies the principle of trust only in case of the violation being direct cause. In this case judicial precedent settles as the matter of cause-and-effect relationship. But I think it is the matter about objective attribution(relevance of violation of duty of care, relevance of the protective purpose of norm), therefore I reviewed the standard of judgment of objective attribution in this case. In modern society the principle of trust based on the principle of allowed danger, the principle of proper distribution of social burden, the principle of social properness may be admitted because of the necessity about restrict of duty of care in negligence criminal in dangerous work which is recognized socially beneficial and necessary. But if we expand the range of application too much on the basis of emphasis about benefit and necessity, it is apprehended that the principle of trust invade the benefit and protection of the law of the other party in life and body. Furthermore, in the same fact relevance Supreme Court and lower instance judge often differently about admission of the principle of trust, it is caused because judge may reach a different conclusion in judgement of admission of the principle of trust in concrete fact relevance according to judge's point of view and judge must conclude individually and concretely. In this situation it is apprehended that the judge decide arbitrarily. Therefore, fair comparison of interests and imprudent decision is necessary in concrete case.