초록 열기/닫기 버튼
From the time when The Civil Code in France was made at the beginning of the 19th century and when the modern legal science of civil law began to form, we have conclusively thought that tort-liability is identical with liability with fault. The fundamental idea behind the thought was that intent or negligence is inevitably required to establish liability. But the circumstances of present days have made us recognize liability without fault or responsibility of risk. The only problem lies not in whether we should recognize liability without fault or responsibility of risk but in how we understand the nature of those liabilities in that context of traditional fault. On reflecting the history of tort, we can see that its nature has changed and advanced from retribution to liability with fault, from liability with fault to social liability, and that its function from punishment, chastisement and suppression to compensation and loss-elocation. At last New Zealand made regulations that society and nation should be responsible for the damages to its’ members, made a system joining liability with insurance, and took the victims’ smooth return to the society as its goal. In spite of the hot disputes in the legislation process, such a revolutionary system is deemed positive as a whole, and in some nations the system becomes the object to study and to be reflected on their systems. In light of the history and background of the idea on liability with fault, the idea regarded every citizen as a being with reasonable personality and liberal will, as its premise, in the forming and developing stage of earlier liberalism and capitalism. The idea also took it as its premise that liability should be recognized only on the ground of liberal will. As a result of reflection on liberalism and capitalism, in nowadays, the social and communitarian idea about human being, nation and society has been set firmly as a confining principle to liability with fault. In comparison with various principles of liability in the field of private laws, we can hardly assert that even liability for failure of obligation is subject to the principle of liability with fault, and the obligation of restitution is very much similar to liability without fault, in reality and in the contents. In conclusion, it is correct to say that liability of tort means only ‘objectively illegal act’. If responsibility of risk exists within the category of liability of tort, there can be no problem. It is also correct to understand that liability with fault and liability without fault or responsibility of risk exist all within the field of liability of tort. If liability of tort is confined within the boundary of liability with fault, responsibility of risk shall be excepted from liability of tort and shall remain as a seperate liability. Then the system with this legal principle is not solid. Because liability without fault or responsibility of risk is very similar to the case of liability of tort, except for the absence of negligence.
키워드열기/닫기 버튼
liability with fault, liability without fault, responsibility of risk, compensation for damages, tort, liberalism, communitarianism, negligence, compensation
