공동불법행위에 있어서의 과실상계

Abstract

Meanwhile, the Torts Law has focused on the protection of victims. However, a reform bill about th joint and several liability, which eliminates or limits a joint liability of tort from the perspective of tortfeasors is recently receiving the attention. The optimal distribution of tortfeasors’ liabilities of a joint tort can be performed through the right to indemnity in internal relationship with victims, and through the legal principle of comparative negligence in external relationship with victims. In particular, if tortfeasors are certainly culpable for victims, the distribution of their liabilities can be carried out through the rational management of the comparative negligence. The methods of comparative negligence in a joint and several liability are generally divided into an overall evaluation theory and an individual evaluation theory. The amount of compensation and joint and several liabilities varies depending on the methods taken. Both methods have strengths and weaknesses. In particular, the overall evaluation theory, which was taken in precedents, has a problem that tortfeasors should bear liabilities of other tortfeasors’ contribution portion as well as his own portion, and that a risk of one tortfeasor’s insolvency can be imposed on other tortfeasors. Comparative negligence can be influenced by the ideology, regulation system and contents of the Joint Tort Law in many ways. What is important in comparative negligence of a joint tort is what effect victims’ negligence will have on a claim for damages to each tortfeasor, and how victims’ negligence will be considered in the relation with multiple tortfeasors. Accordingly, this study examined a comparative negligence system based on the legislations and interpretation theories for a joint and several liability in each country, and identified the drawbacks of this system.