부진정부작위범의 작위의무에 관한 연구

Abstract

The legal liability that bases the acknowledgement of disingenuous negligence can be defined as 'a liability that is being forced to be fulfilled or should be forced by the official restrictive means'. The judgement criteria that were first used for legal liability to act are legislation, contract, and ingerenz(Precedent act) which are the grounds for guarantor position development based on the formality theory. Formality theory is useful in a way that it has a definite judgement criteria. However, it gives difficulty when differentiating between when and when not to acknowledge the legal liability to act in an actual practice. Practicality theory is the theory that was created to overcome the formality theory's problem by judging the acknowledgement of the liability to act in more practical sense. However, practicality theory also poses a problem in a sense that a crystalized judgement criteria is not yet provided to decide in what circumstance a liability to act should be acknowledged. Unified theory, theory, on the other hand, combines above two theories as to complement each other's cons and pros. There is, however, criticism against this theory seeing that the two theories are of the two very different characters so that connecting their judgement criteria is not reasonable. Yet, I believe that if we develop the ways to combine the two theories appropriately, a reasonable judgement criteria that is applicable to specific cases can be constructed. The legal liability to act that bases the acknowledgement of disingenuous negligence should be categorized according to the specific characters of the conditions that the legal liability to act should thought to be acknowledged but not by the type of the regulations that are the bases for acknowledgement of liability such as legislation, contract, and logic. Furthermore, a condition where the legal liability to act takes place can be further classified into two cases: acknowledging the guarantor position as an obligant of protection or as an obligant of management. However, because this classification is insufficient to present each condition's categorical contents in detail, it needs more specificity.