民法 제759조의 改正 論議에 관한 小考

Korean Civil Code Article 759 provides the liability for the harm causedby the animals. As the number of domestic animals increase, this Articlewill be used more often in the near future. In this paper, the authorsuggests the revision of this Article to make it more useful to thechanging circumstances. Scholars say that this liability is a kind of intermediate liability, whichlies between the fault-based liability and no fault liability. However, thearticle itself allows the possessor/keeper escape the liability by provingthat she exercised the requisite care in supervising the animal. Liability foranimal is a kind of risk-based liability due to the animal’s danger to thecommunity. Therefore, the author suggests that the Code should berevised as a strict liability. The author’s second suggestion is about theperson whose liability is sought. Article 759 provides the possessor and/orthe keeper as the libility holder. However, the “possessor” is not a properconcept for the risk-based liability in which the liability usually falls onwho controls the risk and benefits from keeping it. Therefore, the“keeper” is more appropriate liability holder in this Article. Third, theauthor proposes that the new Article should provide a force majeuredefense to avoid the controvercy whether the keeper could use thisdefense.