우리 불법행위제도의 목적에 관한 소고-일본에서의 논의를 단서로 하여-

Judicial precedents and prevailing views regarding the purpose of our tort law system are understood as fair share of damages. However, there is little discussion about what this “fair” concept is. “Fair” means that the victim is compensated if there is a cause of intent or negligence to the assailant, and if it is not reason for the reward, it is not fair that the victim will not be compensated. It is interpreted that it is “fair” to give compensation to the victim regardless. For this reason, the purpose of fair sharing of damages is likely to be linked to liability without fault. On the other hand, in the case of liability without fault, it is mainly covered by the special law, and the principle of liability with fault applied in the civil law. However, if there is no provision in the area of ​​special law concerning non-liability, it should be treated in the general corporate civil law, and if the purpose of the tort law system is viewed as a fair share of damages, Therefore, there is a problem in that it is likely to result in recognition of the compensation regardless of whether or not it is negligent. In addition, the purpose of fair sharing of the damages is connected with the compensatory function, so that the victim compensates only the filling of the damage, which is also contrary to the principle of liability with fault, which means the possibility of blaming the perpetrator. If so, how should we understand the purpose of the tort law system? In this regard, it is necessary first to grasp the background of the introduction of the principle of liability with fault in Article 750 of the civil law. As can be seen from the principle of liability with fault that “there is no liability if there is no fault”, it is the principle of liability with fault that was introduced to protect the rights and interests infringed by the victim while considering the freedom of action of the perpetrator Can be. Second, it is difficult to explain the system of the civil law for the purpose of fair sharing of damages that merely emphasizes compensatory functions. The principle of liability with fault in Article 750 includes the possibility of blaming the perpetrator itself, and it includes not only compensatory functions but also sanctions and preventive functions. It is difficult to explain the reason why the compensatory function is emphasized. Third, to grasp the purpose of the tort law system as an fair share of damage is to distribute not only the victim but also the risk of damages that the society or the state that permits the act should compensate in case the self- In the end, the tort law system will be regarded as a system to maximize the welfare of the society. In the end, the tort law system is to protect the victim's right to be infringed by the offender's illegal act, It is also possible to grasp the rights of the victim as a system that guarantees the rights of both parties, while taking into consideration the freedom of action of the perpetrator who does not violate the tort law system something to do. Fair sharing of damages can be the purpose of the damages law as it is said, but it can not be the purpose of the tort law system.