민법상 손해배상법의 내부적 체계와 동적 체계론에 따른 입법의 관계에 대한 고찰

When judging the illegality in tort law of South Korea's civil law, the general view and judicial precedents take the theory of correlation which states that the consideration of violated interest and infringement must be made in correlative means. But these views also limit the inclusion of a variety of types of unlawful acts that appear in today's increasingly complex society, and as a result, in some cases, may not be clear as to what is illegal. This is especially true in cases of infringement of interests where the scope of protection of rights such as moral rights, environmental rights, and business rights is difficult to define. However, rather than leaving the judgments of balancing conflicting interests between violated interest and infringement to the judge, the fundamental standard must be proposed. For this propose, it is important to find out how the indefinite elements interact under certain standards. To investigate these standards, this study attempted to get a hint from the Flexible Systems, which create a strong trend in Austria and Principles of European Tort Law(PETL). Also Using the Flexible Systems as a research material, we proceeded with the following procedure. First, we considered the discussions in Austria and the status of PETL. At the same time, in order to understand the background of the Flexible Systems in Interpretation or Legislation, the internal system of the Act on Compensation for Unlawful Acts has been clarified. In the next step, we discussed how the Flexible Systems legislation would be evaluated. Finally, through the research mentioned above, I have presented some suggestions for the revision of the compensation provisions based on tort law in future South Korean civil law.