자동차사고와 과실상계 = Car Accidents and Comparative Negligence

다국어 초록 (Multilingual Abstract)

Most of the disputes about car accidents relate to the fault rate. However, unreasonable points regarding the calculation of the ratio of negligence are constantly being raised. The current car insurance system often causes victims to make more damages in traffic accidents. Despite the emotional injury, it is often necessary to compensate more than the offender by applying a mechanical fault rate.
Except for the fact that the perpetrator has a 100% fault, the practice and the precedent of the liability system for damages caused by the current car accident are taking the attitude of acknowledging the responsibility of compensating the perpetrator as well as offsetting the fault to the injured party. As a result, there is an unfair situation between the perpetrator and the victim, which is a problem. This attitude can eventually result in aiding the illegal abuse of the perpetrator, which is not compatible with the ideal of the Road Traffic Act to reduce traffic accidents.
The root cause of these problems arises from the fact that civil liability does not distinguish between the perpetrator and the victim, especially in the application of insurance. In the event of a traffic accident, a police investigation confirms the perpetrator and the victim, and even if the injunction is granted in accordance with the usual rate of fault, it is not consistent with the common use of the expression “perpetrator” or “victim”. Therefore, it is necessary to distinguish the victim from the perpetrator in the car accident first. As a rule, it seems to be judged by whose fault the damage was caused. It is necessary to confirm the person who has a major and critical influence on the occurrence of the damage as the perpetrator.
If the perpetrator and the victim are confirmed, the damage compensation of the perpetrator should be adjusted by offsetting the fault considering the victim 's fault. The perpetrator shall be liable to the perpetrator for the damages of the perpetrator and shall not be liable to the victim for any loss of property or personal injury. The perpetrator's own damages must be solved through the insurance system, and the perpetrator and the perpetrator's insurance company shall bear the risk entirely.
The current debate on liability for damages caused by car accidents is focused solely on the issue of determining reasonable ratios of negligence. However, the discussion of the ratio of negligence itself is wrong, and it should be preceded by a discussion to distinguish between the perpetrator and the victim in the area of civil liability, and thereafter the focus should be on determining a reasonable rate of error as an offsetting of the negligence.
The root cause of these problems arises from the fact that civil liability does not distinguish between the perpetrator and the victim, especially in the application of insurance. In the event of a traffic accident, a police investigation confirms the offender and the victim. We also use the expression “abuser” and “victim” when recognizing damages based on the ratio of negligence. Practice does not match this reality. Therefore, in the case of a car accident, it is first necessary to distinguish the victim from the perpetrator. As a rule, it seems to be judged by whose fault the damage was caused. It is necessary to confirm the person who has a major and critical influence on the occurrence of the damage as the perpetrator. It may be an fault as a liability requirement that causes an accident in violation of a state's obligation, even though the accident may be foreseeable.
If the perpetrator and the victim are confirmed, the damage compensation of the perpetrator should be adjusted by offsetting the fault considering the victim's fault. The perpetrator shall be liable to the perpetrator for the damages of the perpetrator and shall not be liable to the victim for any loss of property or personal injury. The perpetrator's own damages must be solved through the insurance system, and the perpetrator and the perpetrator's insurance company shall bear the risk entirely.
The current debate on liability for damages caused by car accidents is focused solely on the issue of determining reasonable ratios of negligence. However, the discussion of the ratio of negligence itself is wrong, and it should be preceded by a discussion to distinguish between the perpetrator and the victim in the area of civil liability, and thereafter the focus should be on determining a reasonable rate of fault as an offsetting of the negligence.
If the perpetrator and the victim are confirmed, the damage compensation of the perpetrator should be adjusted by offsetting the fault considering the victim's fault. The perpetrator shall be liable to the perpetrator for the damages of the perpetrator and shall not be liable to the victim for any loss of property or personal injury. The perpetrator's own damages must be solved through the insurance system, and the perpetrator and the perpetrator's insurance company shall bear the risk entirely.
The current debate on liability for damages caused by car accidents is focused solely on the issue of determining reasonable ratios of negligence. However, the discussion of the ratio of negligence itself is wrong, and it should be preceded by a discussion to distinguish between the perpetrator and the victim in the area of civil liability, and thereafter the focus should be on determining a reasonable rate of error as an offsetting of the negligence.

참고문헌 (Reference)

• 1 潮見佳男, "不法行爲法Ⅰ" 信山社 2011
• 2 이은영, "채권각론" 박영사 2004
• 3 곽윤직, "채권각론" 박영사 1995
• 4 곽윤직, "채권각론" 박영사 2011
• 5 김증한, "채권각론" 박영사 2006
• 6 류승훈, "자동차사고와 손해배상책임론" 한국학술정보 2011
• 7 류승훈, "자동차사고와 손해배상(Ⅲ)-외국에서의 자동차사고 손해배상책임 분담" 진원사 2003
• 8 최문기, "자동차사고에 있어서의 과실상계에 관한 판례분석" (4) : 1995
• 9 박영민, "자동차사고로 인한 손해배상의 책임과 보상" 법문북스 2012
• 10 류승훈, "자동차사고 손해배상책임의 분배" 한국학술정보 2011
• 11 류승훈, "자동차사고 손해배상책임 분배에 관한 비교법적 고찰 – 독일과 일본의 판례 및 기준례를 중심으로" 한국학술정보 2011
• 12 손해보험협회, "자동차사고 과실비율 인정기준"
• 13 한낙현, "쌍방과실로 인한 충돌 사안의 취급에 관한 판례연구" 한국해법학회 35 (35): 345-371, 2013
• 14 이상덕, "쌍방과실 교통사고 처리에 관한 제언"
• 15 송덕수, "신 민법강의" 박영사 2017
• 16 전용식, "사고부담금제도 개선을 통한 사고예방과 자동차보험의 형평성 제고" 보험연구원 2017
• 17 박성철, "불법행위를 구성하는 보행자의 과실" 부산판례연구회 (6) : 1996
• 18 곽윤직, "민법주해 XVIII–채권(11)" 박영사 2012
• 19 곽윤직, "민법주해 XIX–채권(12)" 박영사 2005
• 20 양형우, "민법의 세계" 피앤씨미디어 2017
• 21 김준호, "민법강의" 법문사 2017
• 22 김영희, "미국 불법행위법상 과실비교 제도의 전개" 법학연구원 23 (23): 133-168, 2013
• 23 서철원, "미국 불법행위법" 법원사 2005
• 24 정수진, "교통사고 소송에서의 과실의 개념 - 공동불법행위 성립요건으로서의 과실과 과실상계에서의 과실의 비교 -" 법조협회 61 (61): 174-207, 2012
• 25 이장선, "교통사고 가해자 구분하기" 좋은땅 2016
• 26 박동진, "과실상계에서 과실의 의미" 7 (7): 2000
• 27 김준호, "과실상계에 관한 판례이론 – 불법행위를 중심으로" 1989
• 28 이준현, "過失相計에 관한 判例의 動向" 법학연구소 25 : 131-161, 2011
• 29 窪田充見, "過失相殺の法理" 有斐閣 1994
• 30 內田 貴, "民法Ⅱ - 債權各論" 東京大學出版會 2011
• 31 松本恒雄, "日本における損害賠償法の現狀と民法改正の方向性" 한국민사법학회 65 : 445-487, 2013
• 32 長谷川 義仁, "損害賠償調整の法的構造" 日本評論社 2011
• 33 Becker, "Kraftverkehrs – Haftpflicht – Schäden" 1994