현대 불법행위법의 동향과 민법상 불법행위법의 문제점 = The Trend of Modern Tort Law and Problems of Korean Tort Law

다국어 초록 (Multilingual Abstract)

This year is the 50th anniversary that Korean Civil Code has implemented after National Assembly enacted it in 1958. Since 1999, the Ministry of Justice has tried to provide with the Draft for the Amendment of Korean Civil Code. The Ministry of Justice did not succeed to pass the Draft in 2004 due to the neglectfulness of National Assembly. The Ministry of Justice has been retrying to pass the Draft from 2009 by calling the number of legal scholars and organizing them based on their specialties. The Ministry of Justice exclaimed that this Draft is supposed to help individuals to easily realize their right in their daily life. I cannot disagree with its main idea. I just disagree with the priority which provisions are first amended. I believe that this Amendment of Korean Civil Code may aim to relieve the problems from Asymmetric Information and Externalities. This means that law for contracts and tort liability should be center for this work. However, it seems to me that the number of committees for this work focuses on contract law rather than tort law. Due to the large number of provisions on contract law, they are more likely to focus on contract law. I would like to encourage them not to overlook the part of tort law. Korean tort law may not have been independent from the principles of criminal law. Although tort law originates from criminal law, now tort liability is totally different form criminal liability. Korean civil scholars should cut off the link that the principles of tort liability depend on the principles of criminal law. European Community and Japan already provided with the Drafts for Civil Code including tort law. They are more likely to reflect to solve the problems from Externalities by expanding tort liability and shifting burden of proof. I showed them as exemplary materials to help the Amendment of tort law. Mostly, I look forward to witnessing the Draft for the Amendment of Korean Civil Code adopting new principles on tort law.

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