英國法上 精神的 傷害의 賠償에 대한 硏究
A Study on Liability for Psychiatric Injury in England
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This article aims to introduce the english law on recovery for psychiatric injury and make some interpretations on korean civil law. After thorough review of the english law on recovery for psychiatric injury, the author has drawn the following conclusions. First, serious disruption to peace of mind is no less worthy of social and legal support than physical injury to the body. because the after-effects of trauma may never fully dissipate, remain to haunt a person and erode mental stability. Secondly, suspicions of malingering and floodgates' fears are an extremely poor reason for denying a remedy, if the cause is just one. so The unreasonable limitations should not be imposed on recovery for psychiatric injury. Thirdly, the plaintiff should be required to prove ① psychiatric injury, ②reasonable foreseeability, ③ causative link between the tortfeasor's conduct and the plaintiff's mental condition. Finally, the nature of the accident, the position of the person who receives the shock and the person who has been injured, means of perception of the accident are all facts which are relevant in determining liability, but no one of them can be regarded as conclusive.
Abstract
This article aims to introduce the english law on recovery for psychiatric injury and make some interpretations on korean civil law. After thorough review of the english law on recovery for psychiatric injury, the author has drawn the following conclusions. First, serious disruption to peace of mind is no less worthy of social and legal support than physical injury to the body. because the after-effects of trauma may never fully dissipate, remain to haunt a person and erode mental stability. Secondly, suspicions of malingering and floodgates' fears are an extremely poor reason for denying a remedy, if the cause is just one. so The unreasonable limitations should not be imposed on recovery for psychiatric injury. Thirdly, the plaintiff should be required to prove ① psychiatric injury, ②reasonable foreseeability, ③ causative link between the tortfeasor's conduct and the plaintiff's mental condition. Finally, the nature of the accident, the position of the person who receives the shock and the person who has been injured, means of perception of the accident are all facts which are relevant in determining liability, but no one of them can be regarded as conclusive.
참고문헌 (34)
- 郭潤直, "債權各論" (2007), 第六版
- "債權", 2005, ~
- 金曾漢, , 債權各論, 7 (2006)
- 金東珍, "교통사고와 외상 후 스트레스장애", 判例硏究, (13) (2002), 부산판례연구회
- 김제완, "영미법상 精神的 衝擊으로 인한 損害의 賠償과 算定- 쇼크 손해 및 외상 후 스트레스 장애(PTSD)를 중심으로 -", 법조, 58(4), pp.5~79 (2009), 법조협회
- 박동진, "쇼크손해에 대한 民事責任의 成立", 法曹, 515 (1999)
- 林建勉, "제3자의 쇼크피해에 대한 손해배상의 범위", 法理論과 實務, 2 (1998), 영남민사법학회
- Barrie, "Personal Injury Law", ~ (2005)
- Burrows, "Remedies for Torts and Breach of Contract", ~ (2004)
- Cooke, "Negligently Caused Psychiatric Injury: A Way Forward?", Liverpool Law Review, 153 (1995)
- Clerk, "Torts", ~ (2006)
- Fleming, "Law of Torts", ~ (1992)
- Havard, "Reasonable Foresight of Nervous Shock", Modern Law Review, 478 (1956)
- Jones, "Liability for Psychiatric Illness-More Principle, Less Subtlety?", Web JCLI (1995)
- Jones, "Liability for Psychiatric Damage: Searching for a Path between Pragmatism and Principle" (2007), Emerging Issues in Tort Law
- Kemp & Kemp, "The Quantum of Damages, Vol. 1" (2009), Damages for Psychiatric illness
- Law Commission Report, Claims for Wrongful Death, , ~ (1999)
- Law Commission Report, Liability for psychiatric illness, , ~ (1998)
- Leibson, "Recovery of Damages for Emotional Distress Caused by Physical Injury to Another", Journal of Family Law, 163 (1976)
- Lynch, "A Victory for Pragmatism? Nervous Shock Reconsidered", Law Quarterly Review, 367 (1992)
- Lawson, "Tortious Liability for Unintentional Harm in the Common Law and the Civil Law", ~ (1982)
- Mayou, "Psychological, Quality of Life and Legal Consequences of Road Traffic Accident Injury", Journal of Personal Injury Litigation, 277 (1995)
- McIvor, "Liability for Psychiatric Harm", Professional Negligence, pp.249~ (2007)
- Mullany, "Liability for Careless Communication of Traumatic Information", Law Quarterly Review, 380 (1998)
- Mullany, "Tort Liability for Psychiatric Damage, 2nd ed", ~ (2006)
- Nasir, "Nervous Shock and Alcock: The Judicial Buck Stop Here", Modern Law Review, 705 (1992)
- Nolan, "Psychiatric Injury at the Crossroads", Journal of Personal Injury Law (2004)
- Robertson, "Liability in Negligence for Nervous Shock", Modern Law Review, 649 (1994)
- Tarsh, "Follow-up Study of Accident Neuosis", British Journal of Psychiatry, 18 (1985)
- Teff, "Liability for Psychiatric Illness after Hillsborough", Oxford Journal of Legal Study, 440 (1992)
- Teff, "Negligently Inflicted Nervous Shock", Law Quarterly Review, 100 (1983)
- Trindade, "The Principles Governing the Recovery of Damages for Negligently Caused Nervous Shock", Cambridge Law Journal, 476 (1986)
- Wheat, "Liability for psychiatric illness-The Law Commission Report", Journal of Personal Injury Litigation, 214 (1998)
- Winfield, "Tort", ~ (2006)