과실에 기한 잘못된 정보제공으로 인한 책임

Cases and studies about tort liability on supplying false informations, which are made and done so far, have been merely listing the factors for admitting the liability, and they cannot provide the logical ground or the structural consistency. Therefore, this paper analyzes the Korean cases & theories and compares them with the laws of Germany, England, and the United States, therefore, it aims to come up with the specific elements for admitting liability which fit to our Korean civil law system. Since liability on supplying false informations is also based on tort liability, according to Korean Civil Cede article 750, the elements such as the tortfeasor’s intent, responsibility, unlawfulness of the harmful act, and damage caused by the harmful act must be proven. Among them, unlawfulness matters the most, and based on principle of Caveat Emptor, supplying false information itself cannot be considered as unlawful. Therefore, it is necessary to have the separate elements to admit its unlawfulness. Unlawfulness, in other words, breach of duty of care can be established when there is not only statutory or contractual duty to supply informations, but also ‘reasonable reliance’ on a recipient of the information. In order to decide whether there is reasonable reliance or not, the court should consider reasonableness of reliance on a recipient of the information and predictability on a supplier of the information as it is showed in Hedley case in England. It is important to consider the following things in order to decide reasonableness of 210 法曹 2013․1(Vol.676) reliance; whether the supplier has the creditability and professionality, whether the supplier give the guaranty or special reliance about the truthfulness of the information, whether the supplier has pecuniary interest in supplying the information, whether the supplied information is on the important matter, whether the recipient received the information directly or not. Especially, the scope of the cases in which the supplier’s liability is admitted, depends on how the court views the circumstance that the information is received indirectly. Therefore, when the court decide whether the supplier is liable for the recipient who receives informations indirectly, it should consider the purpose of information, its intended range and the supplier’s foreseeability. Even when supplying false information is considered as unlawful, other elements for torts such as intent or negligence is required. Here, negligence, in other words, breach of duty is premised on predictability and avoidability. Within-named predictability and avoidability is about the supplying false informations itself, so they are different from the predictability as an element for unlawfulness because the latter focuses on the recipient’s predictability on reliance and the disposition.