비양육친의 미성년자 불법행위에 대한 감독자책임

Abstract

Recently, the Supreme Court ruled for the first time that the non-custodial parent is not responsible for supervising illegal activities of underage children in principle and are liable for supervision only when there are special circumstances such as doing general and routine guidance for underage children or being able to specifically predict the illegal activities of underage children. This ruling will serve as a precedent for determining whether a non-custodial parent is liable for damages for illegal activities of underage children. However, this attitude of the Supreme Court needs to be reviewed in terms of the relationship between parents and children after divorce, the burden of liability for damages of parenting parents raising underage children, and the victim's relief and responsibility for proof.
 If the non-custodial parent is excluded from supervisor responsibility for minors in principle, the responsibility of the custodial-parent after divorce is significant, and it is worrisome that if the parent exercises the right to interview and pays child support only when he or she wants, he or she will be free from the responsibility for illegal activities. And, under the current civil law, the basis for supervisor responsibility for illegal activities of underage children varies depending on whether they are capable of responsibility. The basis determines whether the victim should prove the supervisor's negligence and causal relationship. In addition, in order to hold the non-custodial parent responsible as a supervisor, it is quite difficult for the victim to be rescued from the damage because the victim must prove a special situation.
 Accordingly, regardless of whether or not a minor has the responsibility, the supervisor must be liable for damages to a third party, and the non-custodial parent needs to change the burden of proof for the special circumstances in which the non-custodial parent is liable. Specifically, the proposed amendment to the civil law is as follows. Article 755 (1) “The parents are responsible, regardless of whether a minor who has caused damage to another person has the ability to be responsible. However, in the case of a parent's divorce, he/she shall not be liable if the non-custodial parent proves that he/she is not responsible.” And in paragraph 2, “If a person who inflicted damage on another person is not responsible pursuant to Article 754, the person who is obligated to supervise him/her is liable for compensation.” However, this is not the case if the person liable for supervision has not neglected his/her supervisory obligation. Paragraph 3 includes the contents of Article 755 (2) of the current Civil Act.