중립적 원인자가 손해발생에 가공한 경우 가해자의 손해배상책임

Abstract

ⅰ) The damage can be caused or increased by the neutral factor like natural force as environmental influence goes high. The precedent judges to deduct the attributable fraction by natural force from perpetrator’s liability for damage in view of fair burden of damage. ⅱ) There have been a lot of debates on this matter in Korea. Natural disaster such as cold damage by abnormal cold wave, increase of water temperature by abnormal climate, red tide and typhoon shall not be attributable to anybody. Therefore, such damage will be a risk to be taken by the victim, unless there are special circumstances. In this regard, in the event the neutral factor is related, the liability for damage should be charged on the basis that the attributable fraction by natural force should be deducted from the total liability. However, if the perpetrator could foresee such neutral factors, when taking all circumstances into consideration, and take preventive measures without a huge expense, such liability reduction should not be admitted. On this matter of damage caused by the neutral factor, Germany also agrees that the attributable fraction by the neutral factor should be deducted from the total liability. It means Germany takes the natural-force reduction theory also. ⅲ) In case the neutral factor like natural force contributed to the liability for damage or caused to give more damage, joint tort liability cannot be assumed for both perpetrator and natural force. That is, the perpetrator who has caused damage is not liable for the total damage as joint tort liability is applied, however, the perpetrator shall be liable for the damage occurred in terms of legal principles of joint tort liability.