불법행위법상 과실론의 현대적 과제 - 과실의 개념과 판단기준을 중심으로 -

In the Tort law, the common law understands the error as the psychological state presupposing the possibility of foresight and the avoidance of outcome, and the criterion to judge this error is only abstract mistake, and it judges based on the general averages of the actor 's occupation and status have. In other words, in judging the error, the actor's personal ability or degree of attention is not considered.  This attitude is the same as the attitude of Japanese precedents and customs. In Japan, however, it differs from Japan in that it objectively judges the criteria for the violation of the obligation to conduct, that is, the concept of error, without objectively understanding it objectively. In this way, while objecting the concept of negation, the issue of distinction from constitutional factor, illegality, and problem about the possibility of the issue are raised. Therefore, the recent Japanese Tort law is actively discussing and various opinions are presented.  It is somewhat rational to judge negatively the objectively based on the general public. However, it can not be denied that the general person is the general person of the group to which the actor belongs. However, it is undeniable that the idea of negligence is considered as a subjective factor, It is not possible to deny that there is a risk that the same consequences may be caused by adopting irregular liability,  In this article, we will introduce the discussion in Japan, and try to come back once more about the concept of the negation in our illegal act and its criteria.