독일민법상 추정된 자기과실에 대한 손해배상책임

In the case of tortious damage, the injured party often has difficulty proving the fault of the tortfeasor. Unlike damages caused within the framework of existing contractual obligations, there is no general reversal of the burden of proof in tort law; however, sections 831 et seq. regulate certain offenses in which the fault of the tortfeasor is presumed. This, however, does not change the fact that sections 831 et seq. consistently concern liability for unlawful and culpable conduct. Sections 831-838 of the German Civil Code (BGB) require a legally valid, unlawful, and culpable act. However, these provisions have one special feature in common: the injured party does not need to assert and prove the fault of the party against whom the claim is made; rather, the party against whom the claim is made must prove that they are not at fault. Therefore, if an unlawful, legally valid act has been committed, the law presumes fault on the part of the party against whom the claim is made; The owner is only exempt from liability for damages if he can exonerate himself. Accordingly, Sections 831 et seq. also adhere to the principle of fault; they are (with the exception of Section 833, Sentence 1) not cases of mere strict liability. In this context, three cases in particular must be considered: liability for vicarious agents (Section 831), liability for persons under supervision (Section 832), and liability for damage caused by animals (Sections 833 and 834). Section 833 contains two independent liability categories: Section 833, Sentence 1 stipulates strict liability, i.e., liability of the animal owner regardless of fault and not subject to any proof of exculpation. In contrast, Section 833, Sentence 2 does not stipulate liability for risk, but excludes the liability of animal owners under Section 833, Sentence 1 in the event that the damage is caused by a pet.