일본 민법에서 계약상 의무 위반에 대한 불법행위책임의 인정 여부

Traditionally, the relationship between contractual and tort liability has been mainly discussed only on competition of claims. However, the discussion should shift to whether tort liability is established if one party to the contract intentionally or negligently violates a term of an obligation of the contract and inflicts damage on the other party. If it is considered that the contractual element should be excluded in principle when judging the illegality, which is a requirement for tort liability, tort liability cannot be recognized simply by violating the obligation arising from the contract. On the other hand, there is an opinion that the duty of care of the contract cannot be excluded when judging the illegality. In Japan, tort liability is interpreted in various ways. According to the precedents of the Supreme Court of Japan, contractual factors such as a fiduciary duty of a delegation contract are taken into account for tort liability. Suppose we take the view that the contractual elements take into account the requirements of tort liability. In this case, we can comprehensively and continuously grasp the entire process from the conclusion of the contract to the implementation. However, it is necessary to examine the types of contracts and the contents of obligations in more detail, rather than adopting such an interpretation directly to Korea and hastily admitting tort liability in its entirety.