부작위에 의한 불법행위의 성립요건에 대한 고찰 - 일본에서의 논의를 중심으로 -

Abstract

In general, a tort is occurred when the following components exist: the intentional act or negligence of the wrongdoer, capacity of the wrongdoer to be responsible, illegality, and proximate cause between harmful act and the damage that arises. Among the prima facie case of a generic tort, ‘illegality’ refers to the illegal act of infringement, in which both feasance and nonfeasance are all included. However, since active harmful act does not exist in the case of a tort by nonfeasance, there is a need for distinguishing in what situation such nonfeasance is regarded as illegal. In order for failure to do a certain act to be considered illegal, a doer must have a legal duty to prevent the result which may arise due to such nonfeasance of act: there must be a legal duty to act and the existence of breach of such duty. Since the nonfeasance of the person who has no duty to act is not subject to illegality, a tort does not come into effect. In the generality of cases, this breach of duty to act becomes the problem of illegality. That is, since the act of infringing the rights or legal interest does not exist in the case of nonfeasance, the passive act of a doer which is regarded as nonfeasance of act through the medium of breach of duty to act is considered as illegal. In order for a tort to be committed, the concerned harmful act must be a cause of the damage that arises. However, in the case of a tort by nonfeasance, it occurs not due to the active harmful act but as a result of an act to prevent damages; and thus, strictly speaking, the defendant’s act that is the cause of the damages does not exist. Therefore, a proximate cause in the standard meaning cannot be applied to a tort by nonfeasance. Instead, a proximate cause can be established in the case where damage would not have been caused if a duty to act had been duly performed. As such, the decision on whether a exists in case of a tort by nonfeasance depends on whether the damage would have been caused or not if the concerned duty to act had been duly complied.