EU 불법행위법 통일 논의와 동아시아에서의 통일 모색 = The Unification of Tort Law in EU and its Possibility in East Asia

다국어 초록 (Multilingual Abstract)

1. The modernization of the Civil Code
There increases a demand for the unification and modernization of the civil law in the age of globalization. For many years contract law has been the primary issues of comparative research and thus contract law has become the first aim of successful attempts to unify private law. Torts, too, have become a main area of legislation and of intensive comparative research in EU.

2. The unification of Tort Law in EU
The ‘European Group on Tort Law’ and the ‘Study Group on European Civil Code’ have worked for the unification of tort laws. Such two working groups are using an approach analogous to that of the Lando Commission on European Contract Law. They aimed to harmonize each tort law of EU countries. Both the Study Group and the European Group are presenting proposals for Principles of European Tort Law that are conceptually and methodologically and structurally unified. This article will review recent reforms and enactments in Tort Law of Civil Codes of East Asian countries, i.e. Korea, Japan and China in particular. It is the subject matter to grope the way to harmonize and to unify the tort law.

3. The reform of the Japanese Civil Code
Japanese Civil Code is showing a good example modernization of civil law in the "new era of codification." However, Japanese Civil Code has not had overall revision other than in the field of family law since the codification. Japanese Tort Law is similar to Korean regarding the content and system of Tort Law because of historical background. It is not difficult to study as a comparative law because of its similarity to Korean Tort Law. Japan also has made an effort to modernize its civil code. In 1990s, people have called for an civil code to be understood easily. In response, Japan enacted the" Modernized Language Act" in 2004. The modernized Japanese Civil Code of 2004 has brotght various changes to the pre-existing Code in the formal aspect. Recently, Japan drew up a civil law draft to reform its civil code. However, Japan focuses on the reform of contract law.
4. The reform of the Korean Civil Code
Korean Tort Law has not been amended since the establishment of the Civil Code in 1958. Korean has dealt with the disputes related tort through the special law and the precedents. The characteristics of Korean Tort Law are the general rule of liability for fault, the distinction of fault and wrongfulness, general clause, damages for property and non-property(§KBGB 751·752). There are Traffic accident liability, Environmental Policy fundamental Act, The Mines Act, Product Liability Act, Nuclear Energy Damages Act as a special tort law. Korean Supreme Court has mitigated the general conditions of liability, i.e., negligence, wrongfulness, causation, damages. It has adopted occasionally the theory of the presumption of fact and probability of the causation on professional liability, environmental liability, product liability.
In March 1993, the Korean Assocation of Civil Law has organized the committee to promote the revision of the Civil Code. The regulation of the strict liability, the guardian liability on minors with responsibility. the user's liability, joint tort, the scope and means of damages. However, this work has not connected to the concrete result. Afterwards, Korea tried to amend such provisions of its Civil Code as involving property and obligations in 2004. However, it failed to reform its Civil Code because of the National Assembly. Korean government started reforming its civil code from 2008.

5. The draft of the Chinese Tort Law
Chinese government is now ready to maintain the tort law to change and reform the Civil Code. China still has relied upon general civil provision, special tort law and judicial interpretation.
Chinese government announced a detailed draft of Tort Law based on the mixture of civil law and common law in 2008. It is said that it combines the advantages of civil law and commo

참고문헌 (Reference)

• 1 김상용, "중국에서의 민법전 제정작업의 경과와 민법전 초안 내용의 검토" (3) : 2005
• 2 이상욱, "중국 불법행위법 제정의 현황과 전망" 법학연구소 22 : 165-186, 2009
• 3 한웅길, "일본의 불법행위법의 개혁방향에 관한 소고" (11) : 1990
• 4 박정기, "일본민법의 발전동향" 한국민사법학회 43 (43): 201-236, 2008
• 5 김민규, "일본민법의 발전과 동향-일본민법의 현대화과정을 중심으로-" (3) : 2005
• 6 신유철, "유럽불법행위법의 통일과 전망" 한국민사법학회 (27) : 213-256, 2005
• 7 송오식, "불법행위의 귀책근거와 예방적 효과론" 전남대학교 1994
• 8 한국 민사법학회 민법개졍안연구 소위원회, "불법행위법 개정안의견서" (15) : 1997
• 9 김상용, "불법행위법" 법문사 1997
• 10 백태승, "민법개정의 올바른 방향, 법률신문 2009.2.26일자"
• 11 野澤正充, "民法(債權法)改正の意義と課題" 81 (81): 2009
• 12 鄭鍾休, "日本民法의 現代化" 법학연구소 48 (48): 929-966, 2007
• 13 民法改正硏究會, "日本民法典財産法改正試案" 1281 : 2009
• 14 加藤雄信, "新民法大系 Ⅴ 事務管理·不當利得·不法行爲 제2판" 有斐閣 2005
• 15 梁立新, "我國侵權責任法草案對國外侵權法立法經驗的成功借鑒" 2009
• 16 加藤雅信, "國民の,國民による,國民のため民法改正を目指して" 81 (81): 2009
• 17 王利明, "侵權行爲法硏究(上卷)" 中國人民大學出版社 2004
• 18 신유철, "[번역] 유럽 손해배상법에 있어서의 위법성의 의미 계약의 합의로 인한 구속력과 계약협상의 부당파기의 한계" 한국민사법학회 (25) : 140-163, 2004
• 19 "Zimmermann, Wege zu einem Europäischen Haftungsrecht, in: ders. (Hg.), Grundstrukteren des Europäischen deliktsrechts"
• 20 "Wagner, Grundstrukturen des Europäischen Deliktsrechts, in: Zimmermaann, Wege zu einem Europäischen Haftungsrecht"
• 21 Arther Hartkamp, "Towares a European Civil Code, 3rd. ed" Kluwer Law International 2004
• 22 Ewoud Hondius, "Towards a European Tort Law" Eastern and Western Perspectives 2007
• 23 Mauro Bussani, "European Tort Law-Eastern and Western Perspective" Stämpfli Publishers Ltd. 2007
• 24 박영복, "EU사법(Ⅰ)" 한국외국어대학교 출판부 2009
• 25 안경희, "EU 사법통일의 동향과 분석(2)- 불법행위법" 한국법제연구원 2007
• 26 Paula Giliker, "Codifying Tort Law: Lessons from the Proposals for Reform of the French Civil Code" British Institute of International and Comparative 57 : 2008
• 27 "Christian v. Bar, Gemeineuropäisches Deliktsrecht Bd. ⅠㆍⅡ, Verlag C.H. Beck, 1996ㆍ1999"
• 28 신유철, "21세기 한국민사법학의 과제" (13) :