미국 불법행위법의 위험인수 법리에 대한 고찰

A defense of assumption of risk has been based on the idea that the plaintiff has known the risk of his or her involvement and voluntarily taken the risk. In such circumstances, the plaintiff has waived his or her right to claim for damages. When a defendant argues with assumption of risk, the defendant must prove that the plaintiff has known that the action was dangerous and he or she voluntarily participated in the risk. Without such proof, the jury would not acknowledge that the plaintiff has known of the dangerous behavior and taken the risk. This article consists of five main parts. First, in II., this author has examined the legal theory of assumption of risk in US tort law. In III., this author has studied how the contents of assumption of risk in the United States have been reflected in the (second) Restatements of Torts. In IV, this author has introduced two provisions of the DCFR to compare the rules of assumption of risk. Finally, in V, this author has explained what implications of assumption of risk would be in Korean tort law. The assumption of risk rules has been a product of the historical background of the United States. In a society, the legal system of other societies may look good for some reason. However, it may be considered dangerous to accept the product of efforts to solve the difficulties of the society without deep consideration in a society with different institutional and historical backgrounds. If looking at American assumption of risk rules from the viewpoint of continental law, it could be approached by the victim's consent, duty of care, and negligence, Therefore, there is no need for a uniform device to solve problems, concerning assumption of risk. In this respect, it is not necessary to accept the rules of assumption of risk in the US tort law into Korea, which has the Korean Civil Code.