미국법상 공동불법행위자 상호간 구상관계

Contribution among joint tortfeasors is, after all, a matter of ultimatedistribution of tort liability. In other words, it deals with “suum cuiquetribuere”, namely the justice in attributing to each his own share. In thisregard, the doctrine of contribution is one of the most important vehiclesby which distributive justice in tort law can be achieved. Against this backdrop, I have addressed various aspects of the U.S. tortdoctrines regarding contribution. Traditionally, the U.S. tort law imposedjoint and several liability on tortfeasors only when there was concertedaction or conspiracy among them. Contribution was not allowed amongjoint tortfeasors even when one of these tortfeasors discharged liability ofother tortfeasors. With time, the U.S. tort law has enlarged the scope ofjoint and several liability by imposing such liability where joint torts hascaused indivisible damages. No-contribution rule was still deemedapplicable for such joint torts. However, as comparative negligence thatreflects the idea of apportionment of liability became dominant overcontributory negligence, no-contribution rule has been modified. Nowadays,a joint tortfeasor is widely entitled to seek contribution. Yet, many statesstill deny the right to contribution in case of intentional torts. As the right to contribution was made largely available, the standard ofdetermining the scope of contribution has become even more important. The Restatement (Third) of Torts on Apportionment of Liability, in itsArticle 8, enumerates factors for assigning percentages of liability amongtortfeasors, such as the nature of the person’s risk-creating conduct and the strength of the causal connection between the person’s risk-creatingconduct and the harm. The diachronic change of the U.S. tort doctrine may be described as ameaningful move toward more elaborate apportionment of liability. Thistrend can be witnessed in the rise of comparative negligence, abdication ofa no-contribution rule, and elaboration on the standard of liabilityapportionment. Recent changes in many states toward restriction on jointand several liability while enlarging the scope of several liability, is alsoanother sign of such trend. The above discourse on contribution is worthy of note from theperspective of Korean law. Korean tort law has acknowledged the largescope of joint and several liability with wide entitlement of contributionright. Although I take this stance as appropriate in principle, someexceptions need to be allowed when equity requires so. In seeking atheoretical grounds for such exceptions in the name of equity, the U.S. tort doctrines may be useful sources for reference.