부모의 민사책임에 관한 비교법적 고찰

Recently, the liability of a supervisor for illegal acts committed by a minor has become a cliché-ridden subject, especially when the supervisor also has parental authority. For the fair allocation of damages, the prevailing opinion is that the rules for parental liability should be tightened, to prioritize consideration of the victim, rather than of the person with parental authority, whom could be classified as an offender in terms of the Tort Law. However, there was a judgment passed by the Supreme Court of Japan that presumably went against the international convention. Although the case was a matter of parental liability for a minor with diminished responsibility, the Supreme Court of Japan concluded that the person with parental authority could not foresee such incidents; therefore, it could not be implied that the person had neglected the duty of supervision. Following this conclusion, the Supreme Court of Japan ruled that there is no liability for the person with parental authority to compensate for damages. The judgment of the Japanese Supreme Court was interpreted to expand the possibilities for indemnification from parental liability for a minor who has the capacity for assuming responsibility, specifically by clarifying that parental liability is one’s own responsibility of negligence, regardless of whether the minor has or does not have the capacity of assuming responsibility. What is the expected extent for parents to supervise a minor with the capacity for assuming responsibility? The reasons attributable to parental liability are closely related to its legal characteristics, and the extent of the liability depends on whether their child has the capacity for assuming responsibility. In comparison, there are diverse examples of legislation and judicial decisions coexisting in terms of parental liability. For example, judicial decisions in countries following the Continental Law, such as Germany, France, and Japan, are made by the methodology expanding parental liability. Meanwhile, in other countries, such as the Netherlands and Belgium, legislations are made by the methodology judging the minor’s capacity for assuming responsibility by the age of the minor, and requiring evidences for the practicability of parental liability, or for its indemnification and limitation. On the other hand, as examples of legislation in the countries following the Common Law, the United Kingdom has been relatively faithful in maintaining the principles of traditional Common Law, which theoretically denies parental liability, while the United States has already acknowledged parental liability for a minor and added limitations to liability. In South Korea, the Civil Law has been revised three times in 1995, 2004, and 2012. We would like to examine the institution of the parental liability system, based on the revised Korean Civil Law and on the examples of Japan and the U.S.A., since Japan is the country that is most similar to South Korea among the countries following the Continental Law, and among the countries following the Common Law, the U.S.A. has established the Parental Liability Law in all of the states.