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    닫기

    原因競合에 있어서의 責任分割에 관한 硏究 = (A) Study on the Liability Division in Casuse Concurrence

    한글로보기

    https://www.riss.kr/link?id=T2159924

    • 저자
    • 발행사항

      부산 : 東亞大學校 大學院, 1993

    • 학위논문사항

      학위논문(박사) -- 동아대학교 대학원 , 법학과 , 1994. 2

    • 발행연도

      1993

    • 작성언어

      한국어

    • 주제어
    • KDC

      365.48 판사항(4)

    • DDC

      346.03 판사항(19)

    • 발행국(도시)

      부산

    • 형태사항

      vii, 263p. ; 26cm

    • 일반주기명

      참고문헌: p. 245-258

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      • 국립중앙도서관 국립중앙도서관 우편복사 서비스
      • 대구가톨릭대학교 중앙도서관 소장기관정보
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    다국어 초록 (Multilingual Abstract) kakao i 다국어 번역

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    한국어
    The purpose of this study is on the actual advantages of dividing the Indemnity Liability upon the contribution of damages as far as each wrongdong action is done between each assaulter in case one loss is caused by the wrongdoing action of concurrence assaulters in the illegal action.
    That is to say, it is based on the General Theory which each wrongdoing action between the concurrence assaulters upon Article 750 of General Principles Regulations of Illegal Action must bear the liability on its part of wrongdoing action.
    However, in case the concurrent assaulter invites a loss by the wrongdoing action, that is to say, the cause concurrence, the customs and judgement which anyone will bear the responsiblity on its damages is based on the Civil Code Article 760 up to now, and then it is out current situations which we request the joint compensation liability to all the assaulters as the Joing Illegal Action.
    Actually, in case of the concurrent wrongdoing action, that is to say, cause concurrence, when we consider the various and complicated occurrence of the current illegal action, even if the characteristics and featurs of Cause Concurrence and each type of action between each assaulter appear respectively and differently, we are obliged to think that it disregards the different and proper wrongdoing action of each assaulter.
    Also, in disregard of the equal burden of damages between the sufferer and the assaulter which is the principle of Damages Equal Burden, the basic idea of Illegal Action, it protects only one party of sufferer, and makes the assaulter to bear the indemnity over his own liability, and thus incurs the extreme disadvantages.
    Ⅰ. In consideration of aboves, in case the damages are caused by the incidental and simple default between the concurrent assaulters, the purpose of this study is to evaluate the contribution incurring its damages partly, and then to bear the divided liability between those assaulters, and therefore to make important of the respectively-different wrongdoing action between each assaulter.
    Therefore, it will comply with the principle of Damages-Equal-Burden, basic idea of Illegal Action
    That is to say, in case of cause concurrence which is the wrongdoing action, it is the main value of study which this study evaluates the part and the percentage of wrongdoing action as its contribution which the Joint Compensation Liability is given to all of the assaulters as the Joint Illegal Action of Article 760.
    Ⅱ. We consider and examine the principle of Damage Equal Burden and the speciality of Loss Concept caused from the basic proposition, on finding the theory on the cause concurrence.
    Ⅲ. We consider and examine the legal structure of cause concurrence. And, we make the concept of cause concurrence as that which can perform the different and independent division liability other than the Joint Illegal Action.
    We arrange the cause and result relationship and the cause concurrence relationship, considering the illegal cause & result relationship of General Illegal Action and the equivalent cause & result relationship theory.
    Ⅳ. We consider and examine the cause concurrence and the liability structure. It is our purpose which we settle the cause concurrence caused by the legal structure with the division liability as not the Joint Compensation Liability.
    The basis of these division liability is to realize the liability burden between the concurrent assaulters, as the partial cause & result relationship theory.
    Each wrongdoing cause has the effect upon the cause & result relationship, and is connected to total loss, and has only the partial cause & result relationship on total damages.
    Therefore, it is the theory that has no the partial liability about the liability.
    That is to say, the concurrent assaulter evaluates the wrongdoing action as the contribution and must perform the partial liability.
    Ⅴ. We consider the case of cause concurrence and its contents analysis. If we analyse the case of the existing Joint Illegal Action. we can sufficiently know whether it can perform the division liability as the case of Cause Concurrence.
    The cause applicable as the division liability among the case included to Section 1 of Joing Illegal Action concentrate upon the case of this Joint Illegal Action.
    As the example of Case of Cause Concurrence and its Contents Analysis, its representative case includes the cause concurrence with vehicle, that with the assaulter and the medical trouble, that with the assaulter and the road defect and that with the assaulter and the sufferer.
    Ⅵ. We consider and examine the relationship of cause concurrence and the Joint Illegal Action. Both theories appear differently in the legal and liability structure. In the former case, it is shorn as the division liability construction in the Cause & Result Relation of Article 750, and in the latter case, it is the theory which causes the Joint Liability as the Joint Illegal Action of Article 760.
    On the contrast of making the division liability based on the cause concurrence in case the concurrent assaulters incur a damages and loss as the concurrence of wrongdoing action, the existing customs and judgement and case show that it makes the Joint Compensation Liability as the Joint Illegal Action.
    Because it widely interprets the concerned joint between each assaulter, and gives the Joint Compensation Liability to all of the assualters in consideration with the making-cause of Joint Illegal Action.
    This is the result disregarding the problem which can form it as the division liability caused by the cause concurrence in the position of subjective concerned Joint.
    In order to settle this problems, we are sure to find the important & legal standard of interpretation and applicable standard of both theories, and to submit its settlement.
    Ⅶ. The Settlement measures equivalent to the research result of this study note the problem and its limiations caused on which it makes burden the Joint Compensation Liability as the Joint Illegal Action of Civil Code Article 760, and submit the division liability mentioning which the assaulter must bear the liaiblity as much as the part contributed by his own wrongdoing action in the cause concurrence of concurrent assaulters.
    As the legal standard, we newly interpret the regulations of current Joint Illegal Action than the position of customs and case, and thus the wrongdoing action between the concurrent assaulters of cause concurrence does not bear the Joint Compensation Liability as the Joint Illegal Action but can acknowledge the division liabilty according to the case.
    We can consider 3 kinds of interpretation standard, as shown in the followings, in case of Section 1, with the interpretation of when many a person give the damages to other person as the joint action, they have the responsibility to perform the joint compensation. "of Article 760, Section 1.
    Firstly, Action with Joint Intention upon Mutual Consent between each assaulter
    Secondly, Action with Joint Sense on Damages between each assaulter
    Thirdly, Incidental and simple Action between each assaulter
    However, notwithstanding it has the original legal structure and responsibility structure of wrongdoing action between each assaulter as well as it has no concerned Joint between each assaulter in case of third part of Section 1, it is against the Legislation Purpose of Article 760 and the Principle of Damage Equal Burden which is the basic idea of illegal action which it makes bear the Joint Compensation Liability.
    Therefore, the objective joint is not applied to the case of Section 1, and it is made as thedivision liability partially according to the principle of Cause & Result Relationship, and thus it is considered to be proper that it brings about the coherence of Theory Construction In consideration with these points, we can judge which we interepret to expand the Joint Illegal Action, and thus it is very important to determine the interpretation standard.
    번역하기

    The purpose of this study is on the actual advantages of dividing the Indemnity Liability upon the contribution of damages as far as each wrongdong action is done between each assaulter in case one loss is caused by the wrongdoing action of concurrenc...

    The purpose of this study is on the actual advantages of dividing the Indemnity Liability upon the contribution of damages as far as each wrongdong action is done between each assaulter in case one loss is caused by the wrongdoing action of concurrence assaulters in the illegal action.
    That is to say, it is based on the General Theory which each wrongdoing action between the concurrence assaulters upon Article 750 of General Principles Regulations of Illegal Action must bear the liability on its part of wrongdoing action.
    However, in case the concurrent assaulter invites a loss by the wrongdoing action, that is to say, the cause concurrence, the customs and judgement which anyone will bear the responsiblity on its damages is based on the Civil Code Article 760 up to now, and then it is out current situations which we request the joint compensation liability to all the assaulters as the Joing Illegal Action.
    Actually, in case of the concurrent wrongdoing action, that is to say, cause concurrence, when we consider the various and complicated occurrence of the current illegal action, even if the characteristics and featurs of Cause Concurrence and each type of action between each assaulter appear respectively and differently, we are obliged to think that it disregards the different and proper wrongdoing action of each assaulter.
    Also, in disregard of the equal burden of damages between the sufferer and the assaulter which is the principle of Damages Equal Burden, the basic idea of Illegal Action, it protects only one party of sufferer, and makes the assaulter to bear the indemnity over his own liability, and thus incurs the extreme disadvantages.
    Ⅰ. In consideration of aboves, in case the damages are caused by the incidental and simple default between the concurrent assaulters, the purpose of this study is to evaluate the contribution incurring its damages partly, and then to bear the divided liability between those assaulters, and therefore to make important of the respectively-different wrongdoing action between each assaulter.
    Therefore, it will comply with the principle of Damages-Equal-Burden, basic idea of Illegal Action
    That is to say, in case of cause concurrence which is the wrongdoing action, it is the main value of study which this study evaluates the part and the percentage of wrongdoing action as its contribution which the Joint Compensation Liability is given to all of the assaulters as the Joint Illegal Action of Article 760.
    Ⅱ. We consider and examine the principle of Damage Equal Burden and the speciality of Loss Concept caused from the basic proposition, on finding the theory on the cause concurrence.
    Ⅲ. We consider and examine the legal structure of cause concurrence. And, we make the concept of cause concurrence as that which can perform the different and independent division liability other than the Joint Illegal Action.
    We arrange the cause and result relationship and the cause concurrence relationship, considering the illegal cause & result relationship of General Illegal Action and the equivalent cause & result relationship theory.
    Ⅳ. We consider and examine the cause concurrence and the liability structure. It is our purpose which we settle the cause concurrence caused by the legal structure with the division liability as not the Joint Compensation Liability.
    The basis of these division liability is to realize the liability burden between the concurrent assaulters, as the partial cause & result relationship theory.
    Each wrongdoing cause has the effect upon the cause & result relationship, and is connected to total loss, and has only the partial cause & result relationship on total damages.
    Therefore, it is the theory that has no the partial liability about the liability.
    That is to say, the concurrent assaulter evaluates the wrongdoing action as the contribution and must perform the partial liability.
    Ⅴ. We consider the case of cause concurrence and its contents analysis. If we analyse the case of the existing Joint Illegal Action. we can sufficiently know whether it can perform the division liability as the case of Cause Concurrence.
    The cause applicable as the division liability among the case included to Section 1 of Joing Illegal Action concentrate upon the case of this Joint Illegal Action.
    As the example of Case of Cause Concurrence and its Contents Analysis, its representative case includes the cause concurrence with vehicle, that with the assaulter and the medical trouble, that with the assaulter and the road defect and that with the assaulter and the sufferer.
    Ⅵ. We consider and examine the relationship of cause concurrence and the Joint Illegal Action. Both theories appear differently in the legal and liability structure. In the former case, it is shorn as the division liability construction in the Cause & Result Relation of Article 750, and in the latter case, it is the theory which causes the Joint Liability as the Joint Illegal Action of Article 760.
    On the contrast of making the division liability based on the cause concurrence in case the concurrent assaulters incur a damages and loss as the concurrence of wrongdoing action, the existing customs and judgement and case show that it makes the Joint Compensation Liability as the Joint Illegal Action.
    Because it widely interprets the concerned joint between each assaulter, and gives the Joint Compensation Liability to all of the assualters in consideration with the making-cause of Joint Illegal Action.
    This is the result disregarding the problem which can form it as the division liability caused by the cause concurrence in the position of subjective concerned Joint.
    In order to settle this problems, we are sure to find the important & legal standard of interpretation and applicable standard of both theories, and to submit its settlement.
    Ⅶ. The Settlement measures equivalent to the research result of this study note the problem and its limiations caused on which it makes burden the Joint Compensation Liability as the Joint Illegal Action of Civil Code Article 760, and submit the division liability mentioning which the assaulter must bear the liaiblity as much as the part contributed by his own wrongdoing action in the cause concurrence of concurrent assaulters.
    As the legal standard, we newly interpret the regulations of current Joint Illegal Action than the position of customs and case, and thus the wrongdoing action between the concurrent assaulters of cause concurrence does not bear the Joint Compensation Liability as the Joint Illegal Action but can acknowledge the division liabilty according to the case.
    We can consider 3 kinds of interpretation standard, as shown in the followings, in case of Section 1, with the interpretation of when many a person give the damages to other person as the joint action, they have the responsibility to perform the joint compensation. "of Article 760, Section 1.
    Firstly, Action with Joint Intention upon Mutual Consent between each assaulter
    Secondly, Action with Joint Sense on Damages between each assaulter
    Thirdly, Incidental and simple Action between each assaulter
    However, notwithstanding it has the original legal structure and responsibility structure of wrongdoing action between each assaulter as well as it has no concerned Joint between each assaulter in case of third part of Section 1, it is against the Legislation Purpose of Article 760 and the Principle of Damage Equal Burden which is the basic idea of illegal action which it makes bear the Joint Compensation Liability.
    Therefore, the objective joint is not applied to the case of Section 1, and it is made as thedivision liability partially according to the principle of Cause & Result Relationship, and thus it is considered to be proper that it brings about the coherence of Theory Construction In consideration with these points, we can judge which we interepret to expand the Joint Illegal Action, and thus it is very important to determine the interpretation standard.

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    목차 (Table of Contents)

    • 목차 = ⅰ
    • Ⅰ. 序論 = 1
    • 1. 硏究의 目的 = 1
    • 2. 硏究의 範圍와 內容 = 4
    • Ⅱ. 原因競合의 基本的 前提 = 9
    • 목차 = ⅰ
    • Ⅰ. 序論 = 1
    • 1. 硏究의 目的 = 1
    • 2. 硏究의 範圍와 內容 = 4
    • Ⅱ. 原因競合의 基本的 前提 = 9
    • 1. 序說 = 9
    • 2. 不法行爲의 損害「公平」負擔 = 11
    • 가. 損害「公平」負擔의 義義 = 11
    • 나. 損害公平負擔의 法的性質과 內容 = 13
    • (1) 損害公平負擔의 法的性質 = 13
    • (2) 損害「公平」負擔의 內容 = 15
    • 다. 損害「公平」負擔 內容의 批判 = 19
    • (1) 「公平」理念의 後退現象 = 20
    • (2) 損害賠償의 非補性 = 22
    • 라. 損害公平負擺의 現代的 意味와 再評價 = 23
    • 마. 原因競合理論에의 影響 = 25
    • 3. 不法行爲에서의 損害槪念의 特殊性 = 27
    • 가. 損害槪念의 重要性 = 27
    • 나. 不法行爲에 의한 損害槪念의 再定立 = 29
    • 다. 損害槪念과 關聯問題 = 31
    • (1) 損害槪念과 因果關係 = 31
    • (2) 損害槪念과 寄與慶寄與度槪念 = 32
    • 라. 損害槪念의 再定立에 의한 原因競合理論에의 影響 = 34
    • 4. 結 = 36
    • Ⅲ. 原因競合의 法的 構造 = 39
    • 1. 意義 = 39
    • 2. 民法上 原因競合을 둘러싼 原因關係의 一般理論 = 41
    • 가. 傅統的 因果關係論--條件關係와 相當因果關係 = 42
    • 나. 因果關係論의 變容과 原因競合關係 = 43
    • (1) 鄧分的(比率的)因果關係論 = 44
    • (2) 事實的因果關係論--規範的 價値判斷의 排除 = 48
    • (3) 責任設定的 因果關係와 責任補充的 仁果關係의 分離 = 54
    • 다. 새로운 理論의 問題提起 = 56
    • 3. 一般不法行爲論으로서 原因競合論의 摸索 = 59
    • 가. 原因競合論의 槪念 = 59
    • 나. 原因競合의 立法例와 그 類型 = 60
    • (1) 原因競合의 立法例 = 61
    • (2) 原因競合의 類型 = 62
    • 다. 原因競合의 構成要件 = 66
    • 라. 原因競合의 效果와 그 解決論 = 69
    • 4. 結 = 72
    • Ⅳ. 原因競合의 責任構造 = 74
    • 1. 序說 = 74
    • 2. 部分的(比率的)因果關係論으로서의 解決論 = 76
    • 가. 部分的 因果關係論 = 76
    • (1) 「部分的因果關係論」의 槪念 = 76
    • (2) 部分的因果關係論의 登場 = 77
    • (3) 部分的因果關係論으로서의 責任分割 = 81
    • (가) 加害者의 行爲와 部分的因果關係 = 81
    • (나) 被害者의 行爲와 鄧分的因果關係 = 91
    • 나. 比率的因果關係論 = 99
    • (1) 「比率的因果關係論」의 槪念 = 100
    • (2) 不法行爲法上 比率的因果關係論의 位置 = 101
    • (3) 比率的因果關係論의 登場과 賣任分割 = 102
    • (가) 比率的因果關係論의 登場 = 102
    • (나) 賣任分割 = 106
    • 3. 部分的(比率的)因果關係論의 變容理論 = 109
    • 가. 確率的心證論 = 109
    • (1) 確率的心證論의 槪念을 둘러싼 問題 = 109
    • (2) 確率的 心證論의 主張內容 = 111
    • (3) 確率的心證論의 評價와 限界 = 113
    • 나. 寄與度減責論 (素因參酌論) = 114
    • 다. 過失相計類推適用論 = 115
    • 4. 部分的(比率的)因果關係論의 規範的限界와 再評價 = 117
    • Ⅴ. 原因競合事例와 分析 = 122
    • 1. 序說 = 122
    • 2. 車輛間事故에서의 原因競合 = 123
    • 가. 序 = 123
    • 나. 車輛間事故의 硏究範圍 = 123
    • 다. 車輛間事故의 判例分析 = 125
    • (1) 複數車輛間에 衝突한 事例 = 127
    • (2) 二重轢過에 의한 事例 = 130
    • (3) 一方車의 運轉行爲가 他方車에 의한 事故發生을 誘發한 事例 = 134
    • 라. 原因競合社例分析의 檢討와 賣任分割 = 138
    • 3. 交通事故와 醫療過說와의 原因競合 = 139
    • 가. 序 = 139
    • 나. 兩事故에 있어서 行爲의 檢討 = 141
    • (1) 行爲의 特性 = 141
    • (2) 行爲間의 共通點 = 142
    • 다. 交通事故와 醫療事故 競合의 類型 = 143
    • (1) 競合이 明確한 事例 = 143
    • (2) 醫療行爲競合이 不明確한 事例 = 145
    • (3) 醫療中에 생긴 事由가 直接原因이 되어서 死亡했으나 그 事故가 醫療擔當者의 果失이 없는 事例 = 146
    • 라. 部分的(比率的)因果關係論을 適用한 判例 = 147
    • 마. 部分的(比率的)因果關係論의 適用에 대한 檢討 = 153
    • 4. 道路瑕疵와의 原因競合 = 156
    • 가. 序 = 156
    • 나. 道路瑕疵와의 法的責任 = 157
    • (1) 原因競合과 責任競合 = 157
    • (2) 共同不法行爲와 賣任競合 = 160
    • 다. 判例의 動向과 分析 = 161
    • 라. 原因競合에 의한 賣任分割 = 168
    • (1) 共同不法行爲處理의 問題點 = 169
    • (2) 部分的(比率的)因果關係論으로서의 分割責任 = 170
    • 5. 被害者 索因과의 原因競合 = 171
    • 가. 序 = 171
    • 나. 素因競合에 관한 立法例 = 173
    • 다. 素因競合의 類型과 判例分析 = 176
    • (1) 素因競合의 類型 = 176
    • (가) 病的素因 = 177
    • (나) 加齡的(老人性)素因 = 181
    • (다) 心因的素因 = 182
    • (2) 判例의 分析 = 186
    • 라. 被書者素因에 의한 責任分割 = 191
    • (1) 寄與度(減責)의 意味와 部分的(比率的)因果關係 = 191
    • (2) 寄與度減責의 具體的基準 = 193
    • 6. 結 = 195
    • Ⅵ. 原因競合과 共同不法行爲와의 關係 = 197
    • 1. 意義 = 197
    • 2. 兩理論의 基木的 差異 = 199
    • 가. 因果關係의 判斷基準과의 差異 = 199
    • 나. 分割責任과 連帶責任의 差異 = 201
    • 3. 共同不法行爲論의 現狀과 問題點 = 203
    • 가. 客觀的 關係共同性의 虛構性 = 203
    • 나. 連帶責任의 機能的缺如와 原因競合理論과의 混同 = 206
    • 4. 共同不法行爲理論의 再檢討와 原因競合 = 209
    • 가. 共同不法行爲의 要件의 具體的基準에 관한 再檢討 = 209
    • (1) 因果關係의 具體的基準에 대한 批判 = 209
    • (가) 問題提起 = 209
    • (나) 因果關係의 역할 = 210
    • (다) 因果關係 基準의 불투명성 = 210
    • (2) 關聯共同性의 具體的 基準에 대한 批判 = 213
    • (3) 因果關係와 關聯共同性의 再檢討와 原因兢合 = 216
    • 나. 共同不法行爲의 類型과 原因競合理論 = 218
    • (1) 共同不法行爲의 再檢討에 따른 類型 = 218
    • (가) 累積的競合 共同不法行爲 = 220
    • (나) 必要的競合 共同不法行爲 = 222
    • (다) 擇一的競合 共同不法行爲 = 225
    • (2) 類型分析에 따른 原因競合으로서의 解釋 = 230
    • 다. 原因競合理論과 共同不法行爲理論의 判斷基準 = 232
    • 5. 結 = 235
    • Ⅶ. 結論 = 237
    • 參考文獻 = 245
    • SUMMARY = 259
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