교통사고와 과실상계의 판례법리 - 「자동차사고 과실비율 인정기준」에 대한 비판적 분석을 겸하여

Abstract

The Civil Law of Korea has a negligence settlement system as a legal principle that limits compensation for damages caused by illegal activities(torts). If the negligence of the victim(creditor) has affected the occurrence and increase of the damage, the amount of compensation for damages of the perpetrator(debtor) shall be reduced by taking this into account. It is the attitude of a firm precedent of court decisions that “fault” in the contributory negligence is distinguished from “fault” that is a requirement for illegal activities. That is not a strong negligence of violating obligations, but a weak carelessness required by the principle of good faith. According to court decisions of Korea, a noteworthy solution is drawn when, for example, the perpetrator becomes the victim at the same time, and the victim becomes the perpetrator at the same time, that is, when an accident occurs due to the “fault” of both parties, resulting in an obligation to compensate for damages. Considering that the ratio represents the degree of strong negligence and violation of obligations of both parties regarding the accident itself, the “fault” to be taken into account of the victim(creditor) will usually be greater than the negligence contributed to the occurrence of the accident, so there is a difference between the ratio of the amount of money that the creditor and the debtor will share as a result of the negligence settlement and the ratio of the degree of strong negligence above. For the same reason, the sum of the ratio of the amount of compensation for damages of negligence to be taken into account when offsetting the negligence of one party and the ratio of the other party's negligence is hard to be 1 (100%). However, the “Criteria of contributory negligence in the car accident cases”, which plays a big role in resolving traffic accidents in Korea, shows a different conclusion from the court decisions set forth above. In particular, in the case of automobile versus automobile accidents, the sum of the amount of compensation for damages for negligence to be taken into account when one party's negligence is always 1 (100%), that is, when there is a mutual negligence offset, the amount of money to be shared is called the “fault ratio.” This ratio has the same value for each other's illegal activities. “Criteira of contributory negligence in the car accident cases” of Korea was prepared by referring to Japan's “Certification Standards for Permocation in Civil Traffic Laws,” and Japan's standards take the same attitude with Korea. The Japanese Civil Code also has similar provisions for illegal activities(torts) and contributory negligence with Korea, but Japanese court decisions consider “fault” to be taken into account in contributory negligence as “fault,” which is a requirement for the establishment of illegal activities(torts), which is different from Korean court decisions. As a result, Japan's “Certification Standards for Permocation in Civil Traffic Laws,” faithfully reflects Japan's case practice, which is different from our court practice, and as our “Criteira of contributory negligence in the car accident cases” refers to this Japan standard, it is thought that there was a deviation between our criteria and our court practice.