보호의무에 관한 소고

Abstract

By ‘the duty to protect’ (The duty to consider the safety), it means the duty to be cautious by caring so that one side of the parties concerned in the contract does not encroach upon the life, the body, the ownership rights, and the other property profits of the counterpart. Whether or not to recognize such a protection duty as one of the liabilities has the big differences with regard to the protection of the victim. Or, in other words, if one sees the duty to protect as a liability and organizes the violation as the responsibility of the non-fulfillment of the liability, it becomes more advantageous with regard to the burden of proof and with regard to the extinctive prescription period than the case of organizing into the illegal act responsibility. It has been seen that the current, many theories have been including the duty to protect in the scope of the liability. And the judicial precedents had recognized the violation of the duty to protect the guests on the part of the lodging businessmen in 1994. And, ever since the contract responsibility was organized, the dominant tendency has been to see it as the responsibility resulting from the non-fulfillment of the liability. Germany has stipulated the duty to consider the safety in Article 618 of the German Civil Code. When this has been violated, it has been holding the violator responsible for the non-fulfillment of the liability. Ever since it had recognized the duty to consider the safety in the transportation contract through the judicial precedent of the Court of Cassation in 1911, France has been expansively applying this to the medical contracts and others of the like. And, in Japan, ever since the Highest Court recognized the duty to consider the safety in 1975, the mainstream tendency has been the organization of the responsibility resulting from the non-fulfillment of a liability. And this has been applied to the subcontracts and to the employment relationships of the government officials, too. Meanwhile, in 2004 and in 2011, although the Ministry of Justice had prepared the revised tentative plans that newly established ‘the duty to consider the safety of the employers’ in the employment contract regulations of the civil law, they were not legalized. As such, in the foreign countries and in Korea, the duty to protect was stipulated in order to protect the victims more closely or there were the attempts at the stipulations. As such, it is intended to take a look once again into the legislation cases of the foreign countries regarding the duty to protect and our present situation. And it is intended to discuss the need for the legalization of the duty to protect.