공동불법행위, 구상, 과실상계의 경제적 분석

Some difficult problems arise when more than one party contributed a single indivisible injury: the apportionment of loss. Under Korean tort law, like many other jurisdictions, each tortfeasor should pay the entire loss to the victim irrespective of his degree of contribution “( joint and several liability”). Instead, the tortfeasor who has paid more than his proportionate share of the award, has a claim against the other jointly liable parties “( contribution”). In addition, the damages should be reduced by the victim’s degree of fault if the victim was also negligent “( comparative negligence”). Through the doctrine of contribution and comparative negligence, the entire loss is apportioned. Until now, however,the theoretical basis of these regime as well as the method of loss division has not developed. It is - at least partly - because the traditional view considers loss division a matter of fairness rather than effectiveness. It presumes whether this loss division should be allowed as well as how it should be done has no effect on the efficiency of accident deterrence (efficiency equivalence theorem). This article posits a question on this traditional view. The method of loss division ought to have an effect on the efficiency of accident deterrence. And Hand formula can be applied in situations more than two parties are involved. Besides, the doctrine of joint and several liability also plays a role in both accident deterrence and loss spread,especially when one of the tortfeasors is judgement-proof for some reasons such as insolvency. This article provides an economic justification of joint and several liability and some criteria for determining when to impose joint and several liability based upon the notion of the cheapest avoider and the cheapest insurer.