• Title/Summary/Keyword: 무과실책임주의

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A Study on Contents Technology (제조물책임법의 문제점과 개선방안에 관한 연구)

  • Kwon, Sang-Ro
    • Proceedings of the Korea Contents Association Conference
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    • 2013.05a
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    • pp.183-184
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    • 2013
  • 미국은 1960년대 초부터 제조물의 결함으로 인하여 발생한 손해에 대하여 판례나 학설을 통해 종래의 불법행위법의 범위를 확대하여 과실 계약법제가 엄격책임의 법제로 대체되어 엄격책임을 지게 하였다. 1970년대에 접어들면서 선진국들은 학설 판례에 맡기었던 제조물책임문제를 입법을 통하여 해결하고자 하였다. 즉 유럽국가들은 1985년 제조물책임에 관한 EC지침을 채택하고 1987년부터 대부분의 EU회원국들이 제조물책임법을 제정하였다. 우리나라도 제조물의 결함으로 인한 피해가 급증하면서 피해자와 직접적인 계약관계가 없는 제조자에게 계약책임을 지울 수 없다는 한계를 인식하고 피해자를 보호하기 위해 2000년에 제조물책임법을 입법하여 2002년부터 시행하였다. 동법의 핵심은 제조물책임에 관하여 과실의 유무를 묻지 않고 결함만을 책임요건으로 하는 무과실책임주의를 채택했다는 점이다.

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Changes and Challenges in the Concept of Industrial Accident Insurance in Korea (산업재해 인정 형태 변화와 보상체계 합리화 연구)

  • Kim, Jin-Soo;Ra, Ji-Hun;Lee, Seong-Young
    • Korean Journal of Social Welfare
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    • v.59 no.3
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    • pp.59-73
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    • 2007
  • The compensation system in industrial accident insurance is systemized with "either receiving all or no benefits at all" according to "admited or denied as an industrial accident". Therefore, they are centered on the decision as "industrial accident" or "non-industrial accident", but judging between the two is very complicated, and has inherent conflicting factors. In the early stage of industrialization, industrial accident compensation was based on the indemnity liability for employer's faults. In order to be compensated any damage, the injured worker should prove that the accident was not due to his or her faults. However it was very difficult for injured worker or his or her family to prove the employer's faults, so it was almost impossible to get compensation. Thereafter industrialization progress and improvement of workers' political status lead to conversion from principle of liability with employer's faults to principle of liability without employer's faults. In addition to that, coverage of industrial accident compensation was also expanded. This improvement strengthened the benefit payment principle of "All or Nothing". Even though the "All or Nothing" principle provokes tremendous criticism, the reason why it's difficult for industrialized countries to adopt partial compensation system, is that partial compensation system worsens the administrative hardship, therefore industrialized countries overcome the restrictions of the "All or Nothing" principle with making balance in provisions for any risk to some extent. However, in Korea because the general compensation system for covering medical cost and income loss from accidents, is not equipped, it could be possible to cause acute conflicts with regard to coverage of industrial accidents. Therefore it is required to improve the industrial accident insurance with the acceptance of the significance and logic of discriminated compensation, and create the integrated compensation system in the long run.

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Proposal for Amendment of the Basic Environmental Policy Act ('BEPA') Article 31 (환경정책기본법 제31조 무과실책임규정의 개정방안)

  • Koh, Moon-Hyun
    • Journal of Environmental Policy
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    • v.8 no.4
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    • pp.125-147
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    • 2009
  • The Basic Environmental Policy Act (BEPA) (Law No. 4257 effective 1. August 1990) sets forth the basic policies and administrative framework for environmental preservation, leaving more detailed regulations, and emission controls to separate laws targeting air, water, and solid waste, etc. The BEPA Article 31 adopts an unprecedented strict liability standard for damages as an absolute liability. The BEPA Article 31 provides for liability as follows. If a company is alleged to have caused damage through pollution of the environment, it will be liable for damages unless it can show that the pollution did not cause damages, or that it did not actually cause pollution. If the company did cause pollution, and if the pollution is the cause for the damages in question, the company will be liable irrespective of whether it was negligent or otherwise at fault. If there are two or more companies involved in the pollution, but it is unclear which company caused the damages, all of the companies will be jointly and severally liable for the damages. In this paper, the author attempts to uncover the problems of BEPA Article 31 and then seeks desirable amendments by comparing it to the German Environmental Liability Act. First, it will be necessary to provide definitions of 'companies etc.'. Second, it will be necessary to enumerate the kinds of company facilities. Third, it will be necessary to provide exclusionary clauses on material damages. Fourth, it will be necessary to show 'presumption of cause and effect'. Fifth, it will be necessary to provide a clause on 'right to information'. Sixth, it will be necessary to provide a clause for force majeure. Seventh, it will be necessary to take measures to secure abundant liability for damages which can be caused by the owner of the facility, the potential polluter. Finally, it is appropriate that Korea now legislate an Environmental Liability Act akin to the German Environmental Liability Act.

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An Inducement problem on the principle liability without fault in a legislative bill of injury and relief in a medical accident (의료사고피해구제법안상 무과실책임주의 도입 문제)

  • Jeong, Yong-Yeub
    • The Korean Society of Law and Medicine
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    • v.7 no.2
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    • pp.271-310
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    • 2006
  • In the situation of bringing out of social problem about the medical accident and medical dispute, from 1988 the enactment activity for a legislative bill on conciliation of dispute has promoted, a legislative bill on prevention and relief of medical accident was again proposed in December, 2005. This bill has been faced rough going in review process of National Assembly. Because the purpose of this legislative bill is the conciliation of interest of between medical service consumer and medical service supplier, an item of issues of law is no-fault compensation scheme. However, as no-fault compensation scheme runs counter to the principle liability with fault in our civil law, as expected, whether the inducement is valid or, if induced, the problem is not must be totally reviewed. First of all, the general of principle liability without fault and especially the medical system in foreign countries are reviewed, by reviewing an issue and the pros and cons of the inducement of no-fault compensation scheme, this article draws the conclusion. After all, considering that the necessity adapting Gefahrdungschftung in medical accident as much as other industrial fields exists, the many provisions of the principle liability without fault exists in civil law and special law of our law system, and no-fault compensation scheme let legislative purpose be, to what extent, achieved by conciliating patient and doctor, the inducement of principle liability without fault in medical field is reasonable in the aspect of politic and legal system.

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A Study on the Tort of Public Servant and Liability in State Compensation (공무원의 불법행위와 국가배상책임의 고찰)

  • Yeon, Hwa-Jun
    • Journal of Digital Convergence
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    • v.14 no.6
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    • pp.51-60
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    • 2016
  • The modern state has always followed a variety of risks in the industrialization and informatization trends in the development of science and technology. Under such an environment, A matter of State compensation should take into consideration a variety of values such as harmony relief victims' rights in accordance with the principles of the rule of law, suppression of illegal acts of public servants, ensuring stable performance of official duties, the national treasury stability. As the state takes responsibility for an act of a public servant in a modern constitutional state, there may be a doubt on that the state takes responsibility only when there is a deliberation or a mistake. According to the theory of the self-responsibility, which suits the Constitution, the principle of liability with mistake on the State Compensation Law shall be excluded. I agree to the opinion that a subjective responsibility prerequisite such as a deliberation or a mistake is not required in relation to the liability of reparation on the State Compensation Law. Therefore, it is needed to convert the principle of state liability of reparation from the principle of liability with mistake to the principle of liability without mistake through a fundamental revision of the State Compensation Law.

Liability of the Compensation for Damage Caused by the International Passenger's Carrier by Air in Montreal Convention (몬트리올조약에 있어 국제항공여객운송인의 손해배상책임)

  • Kim, Doo-Hwan
    • The Korean Journal of Air & Space Law and Policy
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    • v.18
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    • pp.9-39
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    • 2003
  • The rule of the Warsaw Convention of 1929 are well known and still being all over the world. The Warsaw Convention is undoubtedly the most widely accepted private international air law treaty with some 140 countries. In the international legal system for air transportation, the Warsaw Convention has played a major role for more than half century, and has been revised many times in consideration of the rapid developments of air high technology, changes of social and economic circumstances, need for the protection of passengers. Some amendments became effective, but others are still not effective. As a result, the whole international legal system for air transportation is at past so complicated and tangled. However, the 'Warsaw system' consists of the Warsaw Convention of 1929 the Guadalajara Convention of 1961, a supplementary convention, and the following six protocols: (1) the Hague Protocol of 1955, (2) the Guatemala Protocol of 1971, (3) the Montreal Additional Protocols, No.1, (4) the Montreal Additional Protocol No.2, (5) the Montreal Additional Protocol No.3, and (6) the Montreal Additional Protocol No.4. of 1975. As a fundamental principle of the air carrier's liability in the international convention and protocols, for instance in the Warsaw Convention and the Hague Protocol, the principle of limited liability and a presumed fault system has been adopted. Subsequently, the Montreal Inter-carrier Agreement of 1966, the Guatemala City Protocol, the Montreal Additional Protocol No.3, and the Montreal Additional Protocol No. 4 of 1975 maintained the limited liability, but substituted the presumed liability system by an absolute liability, that is, strict liability system. The Warsaw System, which sets relatively low compensation limits for victims of aircraft accidents and regulates the limited liability for death and injury of air passengers, had become increasingly outdated. Japanese Airlines and Inter-carrier Agreement of International Air Transport Association in 1995 has been adopted the unlimited liability of air carrier in international flight. The IATA Inter-Carrier Agreement, in which airlines in international air transportation agree to waive the limit of damages, was long and hard in coming, but it was remarkable achievement given the political and economic realities of the world. IATA deserves enormous credit for bringing it about. The Warsaw System is controversial and questionable. In order to find rational solution to disputes between nations which adopted differing liability systems in international air transportation, we need to reform the liability of air carriers the 'Warsaw system' and fundamentally, to unify the liability system among the nations. The International Civil Aviation Organization(ICAO) will therefore reinforce its efforts to further promote a legal environment that adequately reflects the public interest and the needs of the parties involved. The ICAO Study Group met in April, 1998, together with the Drafting Committee. The time between the "Special Group on the Modernization and Consolidation of the 'Warsaw system'(SGMW)" and the Diplomatic Conference must be actively utilized to arrange for profound studies of the outstanding issues and for wide international consultations with a view to narrowing the scope of differences and preparing for a global international consensus. From 11 to 28 May 1999 the ICAO Headquarters at Montreal hosted a Diplomatic Conference convened to consider, with a view to adoption, a draft Convention intended to modernize and to integrate replace the instruments of the Warsaw system. The Council of ICAO convened this Conference under the Procedure for the Adoption of International Conventions. Some 525 participants from 121 Contracting States of ICAO attended, one non-contracting State, 11 observer delegations from international organizations, a total of 544 registered participants took part in the historic three-week conference which began on 10 May. The Conference was a success since it adopted a new Convention for the Unification of Certain Rules for International Carriage by Air. The 1999 Montreal Convention, created and signed by representatives of 52 countries at an international conference convened by ICAO at Montreal on May 28, 1999, came into effect on November 4, 2003. Representatives of 30 countries have now formally ratified the Convention under their respective national procedures and ratification of the United States, which was the 30th country to ratify, took place on September 5, 2003. Under Article 53.6 of the Montreal Convention, it enters into force on the 60th day following the deposit of the 30th instrument of ratification or acceptation. The United States' ratification was deposited with ICAO on September 5, 2003. The ICAO have succeeded in modernizing and consolidating a 70-year old system of international instruments of private international law into one legal instrument that will provide, for years to come, an adequate level of compensation for those involved in international aircraft accidents. An international diplomatic conference on air law by ICAO of 1999 succeeded in adopting a new regime for air carrier liability, replacing the Warsaw Convention and five other related legal instruments with a single convention that provided for unlimited liability in relation to passengers. Victims of international air accidents and their families will be better protected and compensated under the new Montreal Convention, which modernizes and consolidates a seventy-five year old system of international instruments of private international law into one legal instrument. A major feature of the new legal instrument is the concept of unlimited liability. Whereas the Warsaw Convention set a limit of 125,000 Gold Francs (approximately US$ 8,300) in case of death or injury to passengers, the Montreal Convention introduces a two-tier system. The first tier includes strict liability up to l00,000 Special Drawing Rights (SDR: approximately US$ 135,000), irrespective of a carrier's fault. The second tier is based on presumption of fault of a carrier and has no limit of liability. The 1999 Montreal Convention also includes the following main elements; 1. In cases of aircraft accidents, air carriers are called upon to provide advance payments, without delay, to assist entitled persons in meeting immediate economic needs; the amount of this initial payment will be subject to national law and will be deductable from the final settlement; 2. Air carriers must submit proof of insurance, thereby ensuring the availability of financial resources in cases of automatic payments or litigation; 3. The legal action for damages resulting from the death or injury of a passenger may be filed in the country where, at the time of the accident, the passenger had his or her principal and permanent residence, subject to certain conditions. The new Montreal Convention of 1999 included the 5th jurisdiction - the place of residence of the claimant. The acceptance of the 5th jurisdiction is a diplomatic victory for the US and it can be realistically expected that claimants' lawyers will use every opportunity to file the claim in the US jurisdiction - it brings advantages in the liberal system of discovery, much wider scope of compensable non-economic damages than anywhere else in the world and the jury system prone to very generous awards. 4. The facilitation in the recovery of damages without the need for lengthy litigation, and simplification and modernization of documentation related to passengers. In developing this new Montreal Convention, we were able to reach a delicate balance between the needs and interests of all partners in international civil aviation, States, the travelling public, air carriers and the transport industry. Unlike the Warsaw Convention, the threshold of l00,000 SDR specified by the Montreal Convention, as well as remaining liability limits in relation to air passengers and delay, are subject to periodic review and may be revised once every five years. The primary aim of unification of private law as well as the new Montreal Convention is not only to remove or to minimize the conflict of laws but also to avoid conflict of jurisdictions. In order to find a rational solution to disputes between nations which have adopted differing liability systems in international air transport, we need fundamentally to reform their countries's domestic air law based on the new Montreal Convention. It is a desirable and necessary for us to ratify rapidly the new Montreal Convention by the contracting states of lCAO including the Republic of Korea. According to the Korean and Japanese ideas, airlines should not only pay compensation to passengers immediately after the accident, but also the so-called 'condolence' money to the next of kin. Condolence money is a gift to help a dead person's spirit in the hereafter : it is given on account of the grief and sorrow suffered by the next of kin, and it has risen considerably over the years. The total amount of the Korean and Japanese claims in the case of death is calculated on the basis of the loss of earned income, funeral expenses and material demage (baggage etc.), plus condolence money. The economic and social change will be occurred continuously after conclusion of the new Montreal Convention. In addition, the real value of life and human right will be enhanced substantially. The amount of compensation for damage caused by aircraft accident has increased in dollar amount as well as in volume. All air carrier's liability should extend to loss of expectation of leisure activities, as well as to damage to property, and mental and physical injuries. When victims are not satisfied with the amount of the compensation for damage caused by aircraft accident for which an airline corporation is liable under the current liability system. I also would like to propose my opinion that it is reasonable and necessary for us to interpret broadly the meaning of the bodily injury on Article 17 of the new Montreal Convention so as to be included the mental injury and condolence. Furthermore, Korea and Japan has not existed the Air Transport Act regulated the civil liability of air carrier such as Air Transport Act (Luftverkehrsgestz) in Germany. It is necessary for us to enact "the Korean Air Transport Contract Act (provisional title)" in order to regulate the civil liability of air carrier including the protection of the victims and injured persons caused by aircraft accident.

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