공동불법행위

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공동불법행위 민법레포트

목차

제1장 序論 ···························································· 1
제1절 硏究의 目的 ························································· 1
제2절 硏究의 內容 및 方法 ············································· 1
제3절 國內外 硏究活動(硏究背景) ····································· 2

제2장 共同不法行爲에 관한 比較法的 考察 ·················· 3
제1절 共同不法行爲의 沿革 ············································· 3
1. 로마법 ············································································ 3
2. 게르만법 ········································································· 4
제2절 독일법에서의 共同不法行爲 ···································· 4
제3절 영미법에서의 共同不法行爲 ···································· 5
제4절 일본법에서의 共同不法行爲 ···································· 6

제3장 共同不法行爲의 類型 ······································· 7
제1절 狹義의 共同不法行爲 ············································· 8
1. 成立要件 ···································································· 9
2. 效果 ·········································································· 12
제2절 加害者不明의 共同不法行爲 ···································· 12
1. 成立要件 ····································································· 13
2. 效果 ··········································································· 13
제3절 敎唆 傍助에 의한 共同不法行爲 ···························· 14
1. 成立要件 ····································································· 14
2. 效果 ··········································································· 14

제4장 共同不法行爲에 있어서 關聯共同性과 因果關係 ·· 15
제1절 判例 通說의 입장 ·············································· 15
제2절 行爲의 關聯共同性 ·············································· 15
제3절 因果關係 ··························································· 16

제5장 共同不法行爲者의 責任 ···································· 17
제1절 序說 ································································· 17
제2절 損害賠償責任의 性質 ·········································· 18
1. 學說의 검토 ································································ 18
2. 判例의 態度 ································································ 20
제3절 共同不法行爲者 1人에 대하여 발생한 사유의 效力 · 21

1. 序說 ·········································································· 21
2. 絶對的 效力을 認定하는 範圍 ········································ 21
3. 履行請求 ···································································· 22
4. 免除 ·········································································· 22
5. 時效 ··········································································· 23
6. 確定判決의 效力 ··························································· 24
제4절 損害賠償의 範圍 ················································ 24
제5절 共同不法行爲者 상호관의 관계(求償權) ················· 25

1. 序說 ··········································································· 25
2. 求償權의 내용과 근거 ··················································· 26
3. 求償權의 행사 ······························································ 28
제6절 共同不法行爲에서의 피해자의 過失相計 ················· 29
1. 共同不法行爲에서의 過失相計의 意義 ······························· 29
2. 判例의 態度 ································································· 30
제6장 結論 ························································· 30
參考文獻 ····························································· 33

본문내용

제1장 序論
제1절 硏究의 目的
오늘날의 사회는 급속한 경제성장과 과학기술의 발달로 사회생활의 각 분야가 전문화 분업화되는 등 사회조직이 복잡화 다양화되어 감에 따라 하나의 손해의 발생에 단지 하나의 원인만이 있는 경우보다는 복수의 원인이 경합하는 경우가 점점 많아지고 있다. 이와 같은 行爲는 여러 사람이 필연적으로 관계되어 共同不法行爲를 이루고 있다. 여기서 共同不法行爲라 함은 여러 사람이 공동으로 위법하게 타인에게 손해를 발생시키는 行爲를 말한다. 복수의 원인이 경합하는 경우가 대부분이고 발생되는 손해의 규모가 커짐에 따라 共同不法行爲의 법리에 관한 민법의 중요성은 점점 커지고 있다. 우리 민법은 일반不法行爲와는 따로 제760조에 共同不法行爲를 규정하고 있다. 즉 共同不法行爲의 類型을 行爲의 외형을 기준으로 하여 수인이 공동의 不法行爲에 의하여 타인에게 손해를 준 때와 수인의 行爲 중 어느 자의 行爲가 그 손해를 가한 것인지 알 수 없는 때, 그리고 敎唆자나 傍助자도 共同不法行爲者로 認定하고 있으며, 그 效果로서 모든 共同不法行爲者는 연대하여 損害賠償責任을 진다고 규정하고 있다.
본 연구에서는 共同不法行爲에 關聯共同性을 어떻게 볼 것이며, 共同不法行爲者의 責任의 性質을 어떻게 볼 것인가를 둘러싸고 상계 免除 등과 共同不法行爲者 상호간의 구상문제 등 여러 문제를 해결하기 위하여 共同不法行爲의 요건과 效果면에 초점을 두고 共同不法行爲론을 검토하는 데에 그 목적이 있다고 하겠다.
제2절 硏究의 內容 및 方法
본 논문은 共同不法行爲에 관한 우리 민법 제760조의 해석과 관련된 의문점을 해결하기 위하여, 그 규정이 갖는 의미내용을 분명히 하고 재구성하는 목적으로 다음과 같은 순서로 전개하고자 한다.
첫째, 우리 민법상 共同不法行爲제도에 대한 이해를 돕기 위해 민법 제760조와 관련된 외국법의 규정들을 살펴보고 서로 비교해 볼 것이다. 특히 로마법과 게르만법상의 共同不法行爲에 관한 沿革적 검토와 주요 국가인 독일, 영미법, 일본에서의 共同不法行爲에 관한 규정과 우리 민법의 규정과의 비교 분석을 하고자 한다.

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