민법 제760조의 개정안에 대한 검토의견

This treatise deals with the legal problems concerning a revised bill of Korean Civil Act Article 760 which regulates the joint tort. I agree to the revised bill of Article 760 except for the regulations regarding the right to indemnity. The main items of the revised bill of Article 760 are as follows. Firstly, subdividing the type of joint tort, and secondly, a newly-established provisions of the right to indemnity etc. The first clause of Article 760 says that “If the two or more persons have caused damage to other people by their joint unlawful acts, they shall be jointly and severally liable to make compensation for each damages.” The first clause of Article 760 does not classify it as mutual concurrence or mutual nonconcurrence of the cases. However, The first and the second clause of the amendment of Article 760 classify it into two cases. Considering that there is no necessity of restrictions of the responsibility in the case of mutual concurrence, while on the other, I think it is a merit that there is room for possibility that restrictions of the responsibility is limited to the case of mutual nonconcurrence. In the case of mutual concurrence and of mutual nonconcurrence, the prerequisite for a joint tort is not the same. In the case of mutual concurrence, if a cause-and-effect relationship between one’s doings and a damage by one person is proved, it is regarded as doings and a damage by all the persons. In the case of mutual nonconcurrence, all of each one’s doings should meet the prerequisite for a joint tort. I do not agree to establish the regulations regarding the right to indemnity in the amendment of the Article 760. The meaning of joint in the Article 760 means a joint responsibility, even if there has no regulations of the right to indemnity in it. Therefore in case of a joint obligation, the right to indemnity is regulated by the Articles 425∼427. The fifth clause of Article 760 regulates the right to indemnity. However, I recommend that the right to indemnity should be regulated in the way of application. The provisions of the Articles 425∼427 with respect to the right to indemnity shall apply in this case. Introduction of separate responsibility or restrictions of the responsibility is not fulfilled in Article 760. However, we can evaluate that separate responsibility is introduced when we interpret Article 760 in connection with Article 750.