방조에 의한 불법행위책임에 관한 재고(再考) - 온라인서비스제공자의 방조책임을 중심으로-

Abstract

It is inevitable that the network connected world will develop and expand and offline world will become more and more complex. According to such trend, Online Service Provider(OSP) plays an important role and contributes to the development of the social economy. How we rationalize its responsibilities is an issue that we should pay close attention to. In particular, Korea has grown on the basis of Internet and ICT technologies and services, and most of the future growth engines are related to the Internet or ICT. Strengthening or relaxing responsibilities unconditionally are not desirable. Therefore, establishing a reasonable standard of accountability and providing legal clarity to the parties concerned will be an essential basis for sustained national development and social stability. Based on the consciousness of this problem, this article first examined OSP's liability for illegal acts of third parties under the current law and what kind of problems there are and the criteria for recognition of reasonable extent of liability for damages. There has been much controversy as to whether it is appropriate for OSP to take responsibility in result of acting as a conduit, in the case of a loss to the user due to the circulation of illegal information by third party user. Reasonable interpretation approach that can harmonize the responsibilities of OSP is of the utmost importance, and furthermore, legal stability must be achieved through consistent interpretation in harmony with the basic principles of civil law. Based on this recognition, this article examined the adequacy of OSP's liability for damages. Reasonable interpretation approach is attempted in order to reasonably establish the scope of aid and abetment liability under Article 760 (3) of the Civil Code, especially regarding the extent to which OSP should be liable for damages caused by illegal information circulated by third party through OSP, Since the general interpretation theory related to this has not developed so much, this paper tried to interpret the meaning of Article 760 (3) of the Civil Code. As a result, we have observed that it is reasonable to consider Article 760 (3) as having a meaning as a rule that specifically establishes and restrains the scope of the principle of tort liability. It was confirmed that there was a considerable causal relationship between the violation of the duty of care in the viewpoint of the social averages and the damage between the aiding act and the damage as the criterion of the negligence. This paper, rather than presenting new theories or criticizing the precedents, tried to make the clearer interpretation theory of aid and abetment liability that had not been discussed in depth before. I hope that this discussion will be the reasonable basis for judging OSP's liability for damages caused by third party.