학교안전사고의 민사적 구제에 관한 연구 = A Study on the Civil Remedies for Safety-Related Accident in School

다국어 초록 (Multilingual Abstract)

Safety-related accident in school occurs inevitably in unforeseeable circumstances while children or students are engaged in educational activities. In addition, even in case matter of responsibility is clear as majority of the persons directly involved in safety-related accident in school are minor student or teacher or school authorities, such accident has a characteristic that calling to account is not easy as we usually access the accident from educational dimension based on the ethical relationship among teacher․student․parents. Child mortality of our country caused by safety accident is reaching the highest level among the OECD countries. School violence such as bullies etc., is also increasing steadily and suffered students’ psychological distress and psychological aftereffect resulted from the aforementioned are also increasing, so responsibility for protection․supervision of school including teachers is being emphasized than ever before as many students are considered to be falling into the extreme thought of suicide.
Evidences show that foreign countries are putting emphasis on school’s duty of safety consideration. Duty of safety consideration is expressly stipulated in the civil law in Germany and France and Japan are also establishing the principle of duty of safety consideration as a precedent. And those countries access from the aspect of social security considering that safety-related accident in school under public education system has many aspects similar to industrial accidents. With respect to the remedies for damage, Germany compensates it as a liability without fault by introducing legal principles of compensation for special sacrifice considering that safety-related accident in school occurs structurally without teacher’s mistake. Germany is also providing full compensation through student accident insurance by enacting School Accident Compensation Act and applying it to kindergarteners, elementary․middle․high school and university students.
Keeping in tune with such a global trend, Korea has also enacted and enforced special laws such as School Safety Accident Compensation Act and Act on the Countermeasures against School Violence for remedies of safety-related accident in school. As the School Safety Accident Compensation Act is heavily weighted in compensation for damages, however, the act neglects prevention of accidents. Unlike the intent of the law having the characteristics of social security, the law regulates to pay only legal medical care expenses, disability benefit, personal care benefit and bereaved family’s benefit in the actual payment of benefits without paying medical expenses for psychiatry or consolation money, and there are also many problems with laws such as a concern that compensation for safety-related accident in school may be decided by compensation council‘s arbitrary decision. Also, Act on the Countermeasures against School Violence has an advantage such as advance support for medical expenses from School Safety and Insurance Federation, but the act also has a problem that victim cannot receive sufficient compensation for medical expenses as the range of compensation for damage is limited to the direct damages corresponding to the medical care expenses stipulated in the law, and remedies for damages are limited as the act does not include damages caused by lost income, consolation money, nursing fees, transportation expenses, property damage, death․disability etc.
As there is a limit in remedies for damages on the special laws concerning safety-related accident in school, there is no way but to bring a civil action if victim protests against a decision of deducted salary on the special laws. In such a case, if the safety-related accident in school falls under the purview of general tort in the Article 750, supervisor's obligation in the Article 755, employer's obligation in the Article 756 of the Civil Law, it would be able to make school, the assailant take legal responsibility for the accident.
And if safety-related accident in school pertains to both tort and default on an obligation, it is able to hold school responsible for both responsibilities based on the theory of competition of claims. Conventionally, the precedent of our country has made school take legal responsibility for safety-related accident in school by constructing with the theory of tort. In case of not pertaining to the requisites for establishment of tort, however, there is no way but to hold school accountable for contractual liability. In such a case, contract relation shall exist to construct liability of default on obligation, and whether or not attendance in school can be considered a contract relation comes into question.
Thus, this thesis looked into whether to consider attendance in school as a contract of attendance when constructing as default on an obligation in legal principles of civil remedies for safety-related accident in school. This study especially looked into the legal principles of contract of attendance and theories and precedents on teacher’s duty of safety consideration, school founder’s or managers’ duty of safety consideration occurring with respect to the contract of attendance, and considered whether or not it is possible to make school take contractual liability on the ground of violation of the duty of safety consideration.
First of all, theories are conflicting with respect to the attendance in school and the precedent of our country acknowledges contract relation under private law only for private schools and there is no specific precedent over national/public schools, but attendance in school shall be considered a contract of attendance irrespective of national/public or private schools. And contract of attendance is an untypical contract that lays down educational activities as main obligation and duty of protection or duty of safety consideration based on the principles of faith as collateral duties, which shall be considered a special and new contract that characteristics of public and private laws are mixed.
It is not easy to receive remedies by constructing all safety-related accidents in school as torts liability law, so a system that makes founder․manager of a school assume the responsibility for all the accidents in case safety accident occurs in school is necessary. As school education is an activity on the level of national welfare that the state, a local government or a commissioned school foundation shall carry out assuming the responsibility, main agent of school foundation·management such as state shall take the final liability of compensation if safety-related accidents occur in school.
In this context, it shall be considered that a contract of attendance is concluded between school and student with respect to attendance in school by the theory of interpretation regardless of national/public or private schools, and school shall take the duty of safety consideration for students and in case school violates such duty of safety consideration, it shall be interpreted that the school shall assume the liability of default on obligation.
In foreign countries, there are many cases that the state acknowledges that the cause of accident occurrence is the government’s responsibility with respect to safety-related accidents in school and takes responsibility for prevention or solution of compensation for damages. For such guaranty, it is desirable to acknowledge the concept of safety-related accident in school widely and make school founder or manager take the liability of compensation without fault by preparing a safeguard with a legal accident insurance by considering school safety accident similar to the industrial accident. Understanding school attendance as a contract relation and thinking that school is liable for considering safety of students‘ life․body․health related to their educational activities, Japan does not regulate such duty of safety consideration in express terms but is acknowledging the duty by the ordinance of education.
Next, it is required to access safety-related accident in school in a dimension of social security. In modern society that public education is generalized, many aspects of safety-related accident in school are similar to industrial accidents, so there is a perspective that considers safety-related accident in school as a school disaster. Therefore, it is necessary for the state to treat safety-related accident in school by assuming the whole responsibility for the accident. As compensation system of School Safety and Insurance Federation on the Act on the Compensation for School Safety Accident can be considered an inceptive stage of such compensation system, it is required to expand such compensation system more.
Financial indemnification or compensation for victims of safety-related accident in school is important, but what is more important is to prevent safety accidence in advance. In that sense, as special laws such as School Safety Accident Compensation Act or the Act on the Countermeasures against School Violence regulate to take efforts for prevention of safety-related accident in school, what such regulation means is considered big and significant. It is necessary to expand remedies or compensation for damage on the special laws, but institutional․financial support for prevention of safety-related accident in school shall be liberal along with the foregoing, and this study leaves it as a future assignment.

목차 (Table of Contents)

• 제1장 서론 1
• 제1절 연구 목적 1
• 제2절 연구 범위와 방법 4
• 1. 연구 범위 4
• 2. 연구 방법 6
• 제2장 학교안전사고의 개념과 현황 8
• 제1절 학교안전사고의 의의 8
• 1. 학교안전사고의 개념과 교육적 의미 8
• (1) 학교안전사고의 개념 8
• (2) 학교안전사고의 교육적 의미 10
• 2. 학교안전사고의 특징과 유형 12
• (1) 학교안전사고의 특징 12
• (2) 학교안전사고의 유형 15
• 3. 사고유형에 따른 안전의무 17
• (1) 정규수업 중의 사고 18
• (2) 학교행사 중의 사고 23
• (3) 동아리활동 중의 사고 24
• (4) 휴식시간, 방과후 사고 26
• (5) 집단따돌림 27
• (6) 검토․정리 29
• 제2절 학교안전사고 발생실태와 피해보상 현황 30
• 1. 발생실태 31
• (1) 원인별 발생건수 31
• (2) 시간대별 발생실태 32
• 2. 피해보상 현황 33
• (1) 연도별 보상건수와 공제급여 지급 추이 33
• (2) 급여종류별 지급실태 34
• (3) 학교 급별 공제급여 지급액 35
• 3. 검토․정리 35
• 제3절 학교폭력사고 발생실태와 피해보상 현황 36
• 1. 발생실태 36
• (1) 피해 유형 36
• (2) 발생시간 및 장소 38
• (3) 피해의 심각성 40
• 2. 치료비 등 신청 및 지급현황 42
• 3. 검토․정리 42
• 제3장 주요국가의 입법례와 판례의 동향 43
• 제1절 미국 43
• 1. 입법례 43
• 2. 판례의 동향 47
• 제2절 영국 51
• 1. 입법례 51
• 2. 판례의 동향 53
• 제3절 프랑스 54
• 1. 입법례 54
• 2. 판례의 동향 59
• 제4절 독일 60
• 1. 입법례 60
• 2. 판례의 동향 69
• 제5절 일본 71
• 1. 입법례 71
• 2. 판례의 동향 76
• 제6절 정리 및 시사점 82
• 제4장 특별법에 의한 구제의 한계 87
• 제1절 학교안전사고보상법 87
• 1. 주요 내용 89
• (1) 학교안전사고의 예방 및 공제회 운영 89
• (2) 공제급여 지급요건 93
• 2. 공제급여 보상의 한계 98
• (1) 피해보상 범위 문제 98
• (2) 과실상계 문제 100
• (3) 구상권 문제 104
• 제2절 학교폭력대책법 107
• 1. 주요 내용 108
• (1) 피해학생의 보호 108
• (2) 자치위원회의 분쟁조정 112
• 2. 피해구제의 한계 114
• (1) 피해보상 범위의 한계 114
• (2) 분쟁조정의 한계 116
• (3) 피해학생과 가해학생의 관계 121
• 제3절 소결 124
• 제5장 민법의 구제 법리 재검토 128
• 제1절 불법행위에 의한 손해배상 129
• 1. 일반불법행위책임 130
• (1) 일반불법행위의 성립요건 131
• (2) 학교안전사고에 대한 손해배상책임의 주체 134
• (3) 학교측의 보호․감독의무의 범위 138
• 2. 감독자책임 140
• 3. 사용자책임 142
• 제2절 채무불이행에 의한 손해배상 145
• 제3절 채무불이행책임과 불법행위책임의 비교․검토 149
• 1. 학교안전사고에의 양 책임의 적용 149
• (1) 손해배상청구권의 소멸시효 150
• (2) 위자료 청구권 151
• (3) 사용자의 면책가능여부 151
• (4) 고의․과실의 증명책임 152
• 2. 청구권의 경합 문제 154
• 제4절 판례의 동향 156
• 1. 학교측의 책임을 긍정한 사례 156
• 2. 학교측의 책임을 부정한 사례 166
• 3. 검토 174
• 제5절 민사적 구제법리 재검토 177
• 1. 재학계약 179
• (1) 재학계약의 의의 179
• (2) 재학계약의 법적 성질 180
• (3) 재학계약의 당사자 182
• (4) 재학계약에 근거한 손해배상책임 184
• 2. 안전배려의무의 법리 검토 185
• (1) 안전배려의무의 근거 185
• (2) 학교측의 안전배려의무 197
• 제5절 소결 199
• 제6장 결론 204
• 참고문헌 208