정신질환자의 불법행위 책임에 대한 패러다임의 전환과 입법론적 고찰

Abstract

This paper proposes amendments to Articles 754 and 755 of the Civil Code in two aspects: 「Adaptation of an aged society」, such as elderly dementia patients, and 「Relief of Victims」, which have been damaged by them. The basic legal principles of the amendment are as follows. First, there is a legal supervisory duty. Victims may claim the corresponding amount of damage from the perspective of equity to the mentally disabled and the person liable for legal supervision. However, a person liable for legal supervision is exempted if he/she proves his/her non-fault. From the standpoint of a person liable for legal supervision, in principle, they bear responsibility, and exceptionally, they are exempted from responsibility. Compared to the current civil law, this logic may be seen as over-emphasizing the relief of victims, but it is not excessive in light of the fact that the victim must prove the illegal activities of the mentally disabled, who is the perpetrator, and the Korean civil law particularly emphasizes the relief of victims. Next is the case where there is no legal supervisory duty. From the perspective of equity, the victim may claim the corresponding amount of damage to the mentally disabled and the person obligated to act against the mentally disabled. However, in order to claim against the person obligated to act, the victim needs to prove the violation of the avoidance obligation based on the specific predictability of the mentally disabled person of the duty to act. From the standpoint of the person obligated to act, in principle, responsibility is exempted and responsibility is exceptionally borne.