無過失損害賠償責任에 關한 考察 = A Study on the "Absolute Liability"

다국어 초록 (Multilingual Abstract)

One of the greatest principles of the Roman Law would be what is called the "principle of liability with fault", which says that if there is no intent or negligence, no liabilities will follow. The Roman Law would be given much credit for the discovery of such a great legal principle.
Although the social security and order would, in general and normal condition, be maintained under the rule of "liability for negligence", we came to find it almost impossible to prevent the occurrence of losses or damages, both material and human, even with the greatest care in this age in which we find ourselves surrounded by numerous dangers and risks.
In present times, such damagers and hazards would ceaselessly arise, with rapid development of industries and trades, the advent of large-scale enterprises and new traffic vehicles, the use of dangerous devices and power, and the appearance of atomic power and satellites. The situation has been still aggravated by the fact that the social systems and legal institutions evolved complicated, trade and traffic increased enormously, and a gap between the rich and the poor was widened.
Day by day, we expose ourselves to new kinds of terrifying dangers and disasters in shudders. Yet we find no satisfactory cure for this social illness, resulting in cesseless frictions and troubles around us.
Under this situation, if those who benefit from the operation and ownership of large-scales enterprises or run the dangerous devices are not liable for damages and losses under the rule of liability only for negligence, it will prove to be not only in violation of legal principle of equity and social justice but also unacceptable to a sense of ethics prevailing in our society.
To cope with this injustice, so called " the principle of absolute or strict liability" should be adopted. Under this rule, any one who causes or bring about damages or losses must be liable, regardless of whether or not he has intent or negligence. We find this rule more equitable, in conformity with our sense of ethics and better to assure social security and order.
This rule of absolute liability found expressions in modern legal codes and special laws of many countries. Sometimes, the application of the rule will be guaranteed under decisions of the courts of by treaties. The tendency toward its application has been increasing on a solid basis.
On the other hand, however, the Korean scholarship on law and the development of law both in code and in practice still remain far behind the times, with heavy reliance on the exceptions to this rule.
Although the difficulty could not be done away overnight, the legal profession should try to respond promptly to the needs arising following rapid changes in the social situation by analyzing new challenges and reframing a new theoretical structure.
This paper, therefore, does not make any attempt to solve the problem once and for all and rather is seeking the construction of a guild line toward which cases are, which are not, in a range of exceptions to the principle of liability for negligence in the light of the general development of law, coupled with a peculiarity of the needs on our society, although each of cases in exception would not be determined on the basis of one unified principle.
In this paper, I dealt with the historical development of the principle of absolute liability, its foundations, and some cases of which we recognize in our present law and rulings for application of the rule of absolute liability.
This study also covered some other cases for which we should make exceptions to the general rule in view of the evolution of foreign legal principles and practices plus our social needs. And finally the author's opinion was added.

목차 (Table of Contents)

• 一. 序論
• 二. 無過失損害賠償責任主義의 發達
• 三. 無過失損害賠償責任主義의 根據
• 四. 우리나라 現行法上에 있어서의 無過失損害賠償責任
• 五. 船舶所有者, 運送人 및 公衆接客業者의 無過失損害賠償責
• 六. 宇宙平和利用條約 第七條에 依한 無過失損害賠償責任
• 七. 우리나라 法이 認定하는 無過失責任 以外에 無過失責任을 認定해야할 몇가지 理由
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