미국 불법행위법상의 기여과실 - 기여과실론으로부터 비교과실론으로의 발달 -

The history of American tort laws in the last two hundred years reveals a significant change of position on the important question of how to treat the plaintiff's fault. The earlier common law rule was contributory negligence rule. Under this rule that was first pronounced in the English case, Butterfield v. Forrester, the plaintiff shall be denied any compensation if he or she was contributorily negligent. This rule soon came to be recognized as part of common law in the United States. On the other hand, however, critics pointed to the harshness and impropriety of this rule for the victim and attacked the socio-legal basis of this rule as being one-sidedly pro-industry. The initial response from courts was the coinage of the last clear chance doctrine. However, this doctrine stopped at seeking to complement the contributory negligence rule in the context of causation in law. Ultimately, many states in the United States changed their position, either through statutory legislation or change of common law, to the rule of comparative negligence, whereby the plaintiff's fault shall only diminish the amount of compensation in proportion to his or her fault. However, state laws in the United States have tended to make this change relatively late and slowly. There are still a few states that remain faithful to the traditional rule of contributory negligence. It is submitted that Korean lawyers may find a few lessons or implications that can be learned from the historical development of and doctrinal discussion on the rule on the victim's fault in the United States. First, it should be noted that common laws in the United States approach the issue of the plaintiff's fault in tort law and not as part of the general law of obligations covering both contract and tort law. Korean Civil Code stipulates on this issue in the law on the obligor's failure to perform and draws on this same provision in tort law. Korean legislator could reconsider whether this way of legislation is preferable, in view of different policy implications in contract and tort law and the virtual abondonment of art. 396 in actual cases of Korean contract law. Second, one may note that contributory negligence rule is still adopted in a few states in the United States. Among others, the modified comparative negligence rule merits special consideration in the context of possible legislative reform of Korean Civil Code. There are cases where mutuality of the parties does exist in the real world, especially in traffic accident where two cars are involved. For example, a driver of a not expensive car who is minimally negligent should be protected from having to compensate the harm inflicted to the other driver who drove an expensive car and was severely negligent. A modified comparative negligence rule will prove its value by exempting the former driver from having to answer for his or her small proportion of fault. In the meantime, the author is not necessarily supporting the 50% or 49% rule. Korean legislator might also be interested in a more moderate reform of Korean law, e.g., by denying any compensation to a party who is more than doubly (such as 67%) negligent compared to the other party. Third, Korean court practice of allocating the loss on percentage basis may find collateral support as well as further guidance on related issues such as contribution from the United States practice. Fourth, American tort laws illustrate a tendency of possibly treating intentional torts differently from negligence, and this tendency also pertains in handling the plaintiff's fault. A special treatment of intentional tort is unknown to Korean Civil Code. However, it may be worthwhile to consider a legislative or interpretive approach of possibly treating intentional tort differently, and this may also include the scope of applicability of the rule on the plaintiff's fault.