사용자책임에 관한 미국 판례의 동향 = Employers’ Vicarious Liability under the Torts Law of the U.S.

다국어 초록 (Multilingual Abstract)

In the U.S., employers’ vicarious liability refers to cases in which an employer is held responsible for the wrongful acts of the employee within the scope of employment. This article describes main characteristics of employers’ vicarious liability under the U.S. law from a comparative law perspective.
First, employers’ vicarious liability is strict liability. Accordingly, the employer is held liable for the torts of the employee even if the employer is not negligent in selecting or supervising the employee.
Second, under employers’ vicarious liability, it is required that the man at work is an employee. In determining whether he is an employee or not, the control test is performed: physical conduct in the performance of the service is controlled, or is subject to a right of control by the employer. Therefore, an independent contractor is not considered as an employee.
Third, it is also required that the tortious conduct of an employee is within the scope of the employment. In this regard, it is the general rule that employers’ vicarious liability covers the employee’s small deviations from the work set by his employer but not large ones. However, no hard and fast rule exists with respect to the intentional tort of an employee. Such behaviors may be within the course of employment if intended to serve the employer’s interest. However, many cases reject that motive test. Additionally, the modern trend rejects vicarious liability for employee sexual misconduct, reasoning that these type of torts are purely personal in nature and unrelated to the employee’s duties.
Lastly, employers’ vicarious liability tends to extend to the cases where the employee performs a wrongful act at cyberspace workplace or via telecommunication device.

참고문헌 (Reference)

1 곽윤직, "채권각론" 박영사 2003

2 김증한, "채권각론" 박영사 2006

3 김형석, "사용자책임의 입법주의 연구- 역사적⋅비교법적 접근 -" 법학연구소 53 (53): 419-482, 2012

4 김형석, "사용자책임의 요건으로서 사용관계" 한국민사법학회 62 : 229-272, 2013

5 김형석, "사용자책임에서 사용자구상과 피용자책임에 관한 프랑스 판례의 동향" 한국민사법학회 59 : 3-41, 2012

6 김형석, "사용자책임에서 사무집행관련성의 판단- 비교법적 연구로부터의 시사 -" 법학연구소 53 (53): 351-418, 2012

7 이상광, "사용자책임론" 박영사 1992

8 권용우, "민법학의 회고와 전망(민법전시행 삼십주년기념논문집)" 1993

9 곽윤직, "민법주해" 박영사 2005

10 김형배, "使用者責任과 判例 -比較法的 視覺에서-" 법학연구원 (48) : 1-35, 2007

11 T. Baty, "Vicarious Liability" Clarendon Press 1916

12 Dan B. Dobbs, "Torts and Compensation, Concise Edition" West 2013

13 Joan T.A. Gabel, "The Information Revolution and Its Impact on the Employment Relationship: An Analysis of the Cyberspace Workplace" 40 : 301-302, 2003

14 Alan O. Sykes, "The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines" 101 : 563-567, 1988

15 W. Keeton, "Prosser &Keeton on Torts" West Group 1984

16 Gary T. Schwartz, "Hidden and Fundamental Issue of Employer Vicarious Liability" 69S : 1739-1746, 1996

17 W. Seavy, "Handbook of the Law of Agency" West Publishing Co 1964

18 Young B. Smith, "Frolic & Detour" 23 : 444-, 1923

19 John L, "Diamond, Cases and Materials on Torts" Thomson West 2008

20 Richard A. Epstein, "Cases and Materials on Torts" Wolters Kluwer 2012