영국법상 부작위에 의한 불법행위- 작위의무의 발생근거 및 판단기준을 중심으로 -

This article provides an implication for setting the test for affirmative duty to act in Korean tort law by exploring the U.K. case law of negligence liability for omission. The U.K. case law has established that a person basically do not owe a duty of care to protect other person(“Omission Principle”). That is, a person is not under a duty to take care to prevent harm occurring to other people through a source of danger not created by himself. This derives from the acknowledgement of difference between act and omission. In the sense of tort law, the former is an infringement of right while the latter is a failure to confer a benefit upon someone else. The duty of confer a benefit is familiar with contracts rather than torts. Thus, the U.K. tort law has not approved the affirmative duty of care in the level of general rule. However, this omission rule has not always brought about a reasonable result. So, the U.K. courts have established the exceptions to it as follows: (1)the defendant has assumed a responsibility to protect the plaintiff from the danger, (2)the defendant had one something which prevents the third party from protecting the plaintiff from the danger, (3)the defendant has a special level of control over that source of danger, (4)the defendant’s status creates an obligation to protect the plaintiff from the danger. These exceptions may provide an implication for understanding the Korean torts liability for omission.