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논문 상세정보

프랑스법상 不法行爲의 直接的 對象이 아닌 第3者에게 파급한 損害의 賠償

A Study on the "Dommage Par Ricochet(Indirect Damage)" in French Law

외법논집 v.35 no.3 , 2011년, pp.31 - 52   http://dx.doi.org/10.17257/hufslr.2011.35.3.31
곽민희
초록

In tort, when one person causes harm of any kind to another person-whether it is personal injury, or damage to property, or financial loss-the normal remedy which the law gives is a right to recover damages. Furthermore, we may think of the case as following. There are many examples that we can think as the case of indirect victims. For example, it can be considered that workers lost the capacity to work or are dead after being in a car accident. In this case, he cannot support to the wife or child in his family, futhermore, in the workplace he is not able to provide work to his employer. In such matters, the wife and children who did not receive his support or the employer who did not receive his work are the indirect victims. More specifically, the injured man′s employer may loss his work, or his wife or children may give up her work to nurse him. In other words, indirect victim(secondary victim) could be described as the man who is not a direct target of aggression and suffered loss for torts. Where one person sustain loss or incurs expense, as the result of injury to another, do he has in general right of action? This is the main topic in this thesis. For this problem, the following two approach exist. One is the approach that regard the matter of indirect victim as the matter of scope of damages, such as causation. The other is the approach that regard the matter of indirect victim as the examination of negligence whether there is the violation of duty of care. But as the interpretation of Korean Civil law, it has no meaning the conflict of two approach. Because this matter is finally brought to a conclusion the matter of the interpretation of ″foreseeability″ as the factor of causation or negligence. Because the question is whether the neglect of the duty was a cause of the injury in proper sense of that term, and causation, as well as duty, often depends on what you should foresee. The chain of causation is broken when there is action which we could not reasonably be expected to foresee. It seems to me that they are simply two different ways of looking at one and the same problem. Starting with the proposition that a negligence person should be liable, within reason, for the consequences of his conduct, the extent of his liability is to be found by asking the one question. Is the consequence fairly to be regarded as within the risk created by the negligence? If so, negligent person is liable for the damage of indirect victim. But otherwise not. Nevertheless, it is not always we come to the same conclusion. They can be determined by applying common sense, policy or national sentiment to the facts of each particular case. I think the courts should consider the particular relationships of those concerned in the particular circumstances and se whether, as a matter of policy, the damage of indirect victim should be recovered.

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