사용자책임의 입법주의 연구- 역사적⋅비교법적 접근 -

The Korean Civil Code (art. 756 I) prescribes the employer’s responsibility for her employees who caused damage to others, but with her chance of exculpation, if she proves her no fault in selecting and supervising them. From this one would get the impression that the employer’s vicarious liability in Korean law is based on her presumed fault, which could be, however, in effect deceptive. For the case law with many scholars’ approval presuppose the employee’s tort, not merely causing damage, and allows no exculpation of the employers, in sofar as published cases are concerned. So one can say the law in action on this matter is rather the employer’s no fault vicarious liability. Here arises a question of assessing the current state of law. To answer this question, the author attempts to approach the problem from historical-comparative standpoint. Starting with the Roman law, he traces the rules concerning master’s responsibility for servants through ius commune till the great civil codes in the 18th and 19th centuries. He afterwards gives an overview of the employer’s liabilty in modern civil codes. In conclusion the rules of the Korean Civil Code und its intrepretation by the case law are assessed with their suggested revision.