공동불법행위자별 책임의 개별화 가능성에 관한 소고

In principle, joint tortfeasors are jointly responsible for the total damage, regardless of each tortfeasor’s comparative negligence. Neither can the discretionary reduction of liability be allowed by the court, if it is only for one of the tortfeasors. However, courts have deviated from this rule and made exceptions in some cases without delineating any instructions or criteria on when to approve such exceptions. This article has reviewed some of the elements to consider in evaluating each joint torfeasor’s liability, and suggests as follows; ① if joint tortfeasors did not act in conspiracy or under common purpose, each tortfeasor should take responsibility only under his comparative negligence. Imposing the same liability to all of the concurrent tortfeasors under any circumstances does not contribute to the fair and equitable distribution of the damage. ② although theory of contributory causal relationship has been suggested, causal relationship is something that exists or not. It cannot proportionally exist. ③ each tortfeasor’s liability should be limited to the same and indivisible harm which has been caused by him. Foreseeability should also be considered in demarcating the extent of the special damage to be covered. ④ discretionary reduction of one of the tortfeasor’s liability should be allowed as the last exceptional means, when joint liability is extremely harsh to such tortfeasor and against bona fides and fairness. ⑤ even if some acts might be substantially proven to be joint torts, contract liability and tort liability are separate, thus the amount of the damage can be different. Setting more clear rules on joint tortfeasors’ liability will decrease exploratory lawsuits against ‘deep pockets’, deter use of joint torts as threatening measures for financially distressed tortfeasors, and promote substantially fair and equitable distribution of the damage among the related parties.