민법 제758조 하자 및 손해 판단에 관한 소고

Article 758 of the Civil Code, which aims to promote fair sharing of damages, focused on the judgment of defects and damages in the responsibility of the structure, which is often a problem in practice. First, when the structure responsibility system was outlined, it was confirmed that the structure responsibility was a system that had its own area in the tort law. In particular, by examining the commonalities and differences from other responsibility systems, it was examined that the structure responsibility system has a special position. Regarding the judgment of defects in the responsibility of the structure, the Supreme Court's attitude was confirmed that the state of not having the safety that the structure normally should have according to its purpose was regarded as a defect in installation and preservation, and that the criterion for judging its safety was compliance with the protection measures obligation. It also examined the validity of the argument to exclude the duty of protection from defect judgment and that the hand rule mentioned by the Supreme Court can function as a means to supplement it in response to situations in which the defect judgment process can lead to abstract judgment. Regarding the judgment of damage to the construction work, the Supreme Court recently considered that if the damage caused by a defect in the construction work was due to the failure of the contract, it was not a damage to the construction work responsibility, but this attitude was unfair. This is because the decision to apply the construction work liability based on whether the damage suffered by the victim should be viewed as a loss of contractual performance gains significantly reduces the application area of Article 7758 of the Civil Code and undermines the legislative purpose of the construction work responsibility system. If it is to prevent the amount of damage to be compensated from becoming excessive, it is deemed sufficient to limit the scope of the construction work liability in the calculation of the specific damage compensation amount, not to deny the establishment of the construction work liability. In the end, the structure responsibility system is an independent responsibility system that is distinguished from contract liability as well as general tort liability, and as long as the victim's claim meets the requirements for structure responsibility, in principle, the establishment of structure responsibility must be recognized. Since the Supreme Court's recent judgment on the recognition of damages for structural liability is not valid by excessively reducing the application area of Article 758 of the Civil Code, it is necessary to clarify the distinction between the establishment of structure responsibility and the scope of damages in individual cases in the future, thereby developing the structure responsibility law in a direction that has specific validity by limiting the scope of damages.