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A Study on the Comparative legal of the Fair Liability as a Imputation Principle

  • Legal Theory & Practice Review
  • Abbr : LTPR
  • 2017, 5(1), pp.71-98
  • Publisher : The Korea Society for Legal Theory and Practice Inc.
  • Research Area : Social Science > Law

won, sang-chul 1

1용인송담대학교

Candidate

ABSTRACT

Modern Civil Law that adopts the principle of fault liability as basic principles, is aimed at guaranteeing the free economic activity of individuals on the basis of liberalism and capitalism. However the economic and social realities, according to the rise of capitalism, the development of machinery, the emergence of large corporations and the expansion of the expansion industry, have made it inevitable for the correction of self responsibility. Therefore, the no-fault liability is emerged by theory of liability for danger, liability for compensation, liability of cause, fair liability, liability for results etc. On the other hand, If you think of no-fault liability as a liability for danger and liability for compensation in a narrow sense, the rationale behind the fair liability is to assume another imputation principle of liability. Indeed, only liability for danger and liability for compensation has been thought of as the principle of imputation liability, but The fair liability should provide theoretical evidence in order to do the principle of imputation on the no-fault liability. Consequently, about the victims who can not be saved by the no-fault liability or fault liability, it is also necessary to provide the basis for new damages and extend the repairing possibility of the victims to the level of the principle of imputation. According to the Korean Civil Act(article 765) concerning application for reduction in compensation amount, the person liable to make compensation in accordance with the provisions of this chapter may petition the court for a reduction in the amount of compensation, if the damages were caused neither intentionally nor by gross negligence, and such payments of compensation shall be a severe hardship to his livelihood(paragraph 1). The court may, if the petition mentioned in paragraph 1 has been filed, reduce the amount of compensation after a study of the claimants and obligors respective financial situations and the cause giving rise to the damages(paragraph 2). Discussion of the compensation for damages and fairness of our country is mainly related to the apportionment of losses between the perpetrators and the victim. Therefore, comparative legal studies are needed to activate the fair responsibility of our civil law. Especially, in order to lay down the fair liability, Current regulations of foreign countries and individual types will give a helpful preview point on our civil law.

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