독일불법행위법상 생명침해로 인한 유족의 위자료청구권 - 우리나라 및 일본과의 비교 고찰을 중심으로 -

Abstract

In Germany, from 22 July 2017, German Civil Code (BGB) Art. 844 (3) came into force. As a result, the bereaved family can exercise the consolation money where of violation of life. BGB Art. 844 (3) corresponds to Korea Civil Act Art. 752 and Japan Civil Act Art. 711. The purpose of this article is to explore the meaning of consolation money for the bereaved family under the BGB Art. 844 (3) through a comparative legal review with the Japanese civil law and Korean civil law. In Germany, in principle, victims must claim damages directly. Consolation money for the bereaved family is to admit the claim for damages to the bereaved family because the deceased cannot directly exercise the right to claim. There is a difference from Korea and Japan, which do not limit claimants to direct victims. BGB Art. 253 (2) stipulates for intangible damage: If damages are to be paid for an injury to body, health, freedom or sexual self-determination, reasonable compensation in money may also be demanded for any damage that is not pecuniary loss. In terms of the relationship and content of alimony, it is similar to the general provisions of tort law in Korea and Japan and the provision of consolation money where of violation Life. Regarding the function of consolation money for the bereaved family, the sanctions function in Korea and Japan is more prominent as a satisfaction function in Germany. There is a difference in perspective that allows sanctioning elements in its function. In terms of the satisfaction function, in Germany, the aspect of satisfying the psychological satisfaction of the victim is emphasized. On the other hand, in Korea and Japan, the function of obtaining the satisfaction of compensation for mental pain with money is emphasized. Regarding the expansion of elements of violation Life, expansion is blocked in Germany. This is because it is the claim of the ‘bereaved family’ on the premise of death. On the other hand, in Korea and Japan, expansion is recognized because 'life' is understood as an example. Many theories and precedents in Korea recognize consolation money even in cases of serious injury. This should be rethought. It is appropriate to limit it to cases that are substantially equivalent to the violation of life, such as in a vegetative state or coma. Regarding the personal scope of the claimant, in Korea and Japan, it is understood more broadly than the legal text. In Germany, it is interpreted with relaxation. However, the extension to a person other than the bereaved family or relatives needs to consider special circumstances in understanding the scope of the person. BGB Art. 844 (3) will be a new reference for the interpretation of Korea Civil Act Art. 752. As stated above, comparative review of detailed contents in legal interpretation will be very important. At the same time, more fundamentally, it is to review the background and meaning of the introduction of the consolation money for the bereaved family in Germany and explore the meaning it gives to us.