불법행위 손해배상 원칙의 수정으로서 책임제한과 비례책임의 비교

Due to an increase of various inevitable hazards in the modern industrial capitalistic society, members of such society frequently encounter unforseen damages, and due to characteristics of such damages, not all criticisms involved in such damages can be levied against the tortfeasors. Accordingly, the principle of compensatory damage and the principle of joint responsibility related to joint tortfeasors specified in the traditional act on compensation for damages no longer serve as rational solutions, and therefore it is necessary to restate such principles in order to adjust the profit of the involved parties in the aspect of impartiality. Based on the restated principle of compensatory damage, our court has been reaching the decision of ‘liability limitation based on precedents’ in which the amount of compensation is partially reduced regardless of whether or not comparative negligence or profit/loss offset is applied, and also has been introducing ‘proportionate liability’ to the Law on Outside Auditors of Corporate so that the tortfeasors must compensate for damages at a rate set by the court in accordance to the reasons attributable to the tortfeasors. Although such liability limitation and proportionate liability are common in that they both limit liability of the tortfeasors to compensate the victims for damages, they serve a different purpose and form different scope of application. Initially, the proportionate liability cannot be applied to intentional tort, and since each tortfeasor to whom such proportionate liability is applied covers divided liability, problems involving indemnity do not occur. However, the liability limitation may be applied to intentional tort, and since each tortfeasor to whom such liability limitation is applied covers joint liability within the range of liabilities that overlap, problems involving indemnity remain to be solved. In addition, such liability limitation and proportionate liability can be simultaneously applied to an identical case if necessary, and both systems may serve as rational and just solutions in which the reality is considered to cope with diverse cases involving compensation for damages encountered in the modern society.