타인의 불법행위로 사망한 태아의 손해배상－전통적 해석론에 대한 비판적 검토와 새로운 해석론을 중심으로－

The Supreme Courts and traditional views have reached same results in deciding whether a wrongful death action is maintainable for the death of an unborn child. That is to say they have held that where an unborn child was not viable at the time of sustaining injuries which subsequently resulted in prenatal death, a wrongful death action is not maintainable and denied compensation for the damage by dead fetus who was caused by tort of the others. As a basis for denying the right to maintain a wrongful death action for the death of an unborn child, they have expressed such view as the following; article 762 in civil law “(Status of Unborn Child in respect of Claims for Damage)An embryo or fetus shall,in respect of the claim for damages, be deemed to have been already born.” must be interpreted within the confines of article 3 in the civil law “(Duration of Legal Capacity) All persons shall be subjects of rights and duties throughout their lives.” The Constitutional Court said the Supreme Courts and traditional views could be maintained due to conforming to the Constitution(The Constitutional Court Decision on July. 31. 2008, case no. 2004 heonba 81). But they have many problems(evaluation contradiction etc.) In order to overcome the problems, a new theory set up article 762in civil law must be interpreted as the special regulation of article 3 in the civil law. So, a new theory insists that court must permit compensation for the damage which is caused by a wrongful death action regardless of birth. In my opinion, I think that article 762 in civil law must be interpreted as the special regulation of article 3 in the civil law within the confines of the protection of right to life of fetus. To put it in a nutshell, article 762 in civil law can be applied only to status of unborn child in respect of claims for damage caused by direct tort of the others in the eyes of article 3 in the civil law and article 10 in the Constitution.