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학위논문 동서

原因競合에 있어서의 責任分割에 관한 硏究

하윤수

부산: 동아대학교 1993. -

263p; 27cm. -

학위논문(박사)- 동아대학교 대학원 법학과 94년2월

참고문헌: p.245-258 / 영문초록 : 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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