제1장 불법행위 일반론
제1절 불법행위의 개념과 성립요건 ····························3
1. 불법행위의 개념 ············································································ 3
2. 불법행위의 일반적 성립요건 ······················································ 3
(1) 행위자에게 고의 또는 과실이 있을 것 ································ 4
(2) 행위자에게 책임능력이 있을 것 ············································ 4
(3) 그 행위가 위법한 것일 것 ······················································ 4
(4) 손해가 발생하였을 것 ······························································ 4
(5) 가해행위와 손해 사이에 인과관계가 있을 것 ···················· 4
3. 불법행위의 효과 ············································································ 5
제2절 정신적 손해의 배상 : 위자료 ····························6
1. 정신적 손해의 배상(위자료)의 개념 ········································· 6
2. 재산 이외의 손해의 배상의 구체적 검토 ································ 6
(1) 위자료 청구권이 인정되는 경우 ············································ 6
2 차 례
(2) 위자료 청구권자 ········································································ 8
▣ 관련사례 ▣ ····················································································· 9

제2장 민법상 특수불법행위
제1절 책임무능력자의 행위에 대한 법정감독의무자의
책임 ····················································································43
1. 법정감독의무자의 책임의 의의 ·············································· 43
2. 법정감독의무자의 책임의 요건 ················································ 43
3. 효 과 ······························································································ 44
(1) 법정감독의무자의 손해배상책임 ·········································· 44
(2) 대리감독자의 책임 ·································································· 44
(3) 양자의 책임관계 ······································································ 45
4. 행위자 본인의 책임과 관계 ······················································ 45
▣ 관련사례 ▣ ····················································································· 46
제2절 피용자의 행위에 대한 사용자의 책임 ···········64
1. 의 의 ······························································································ 64
2. 사용자 책임의 발생요건 ···························································· 64
(1) ？어떤 사무에 종사시키기 위하여 타인을 사용할 것？···· 64
(2) 피용자가 사무집행에 관하여 손해를 주었을 것 ·············· 65
차 례 3
(3) ？제3자？에게 손해를 주었을 것 ············································ 65
(4) 피용자의 가해행위는 그 자체로서 불법행위의 일반요건을
구비할 것 ··················································································· 66
(5) 사용자가 면책사유 있음을 입증하지 못할 것 ·················· 66
(6) 사용자 책임의 면책사유인 ‘피해자의 중대한 과실’의 의미
··········································································································· 66
(7) 입증책임 ···················································································· 67
3. 효 과 ······························································································ 67
(1) 사용자의 손해배상책임과 대리감독자의 책임 ·················· 67
(2) 피용자의 손해배상책임 ·························································· 68
(3) 구상권 ························································································ 68
▣ 관련사례 ▣ ····················································································· 70
제3절 도급인의 책임 ···················································101
1. 원 칙 ····························································································101
2. 예 외 : 도급인이 사용자책임을 지는 경우 ·························101
(1) 의 의 ························································································ 101
(2) 요 건 ························································································ 101
▣ 관련사례 ▣ ·················································································104
제4절 공작물 등의 점유자？ 소유자의 책임 ············109
1. 공작물 책임의 의의 및 법적성질 ··········································109
4 차 례
(1) 의 의 ························································································ 109
(2) 법적 성질 ················································································ 109
2. 공작물책임의 요건 ····································································110
(1) 공작물로부터 손해가 발생하였을 것 ································ 110
(2) 공작물의 설치 또는 보존에 하자가 있음으로써 손해가 생
겼을 것 ·····················································································110
3. 효 과 ····························································································114
(1) 점유자의 책임 ········································································ 114
(2) 소유자의 책임 ········································································ 115
(3) 점유자？소유자의 구상권 ···················································· 116
4. 수목에 관한 책임 ······································································116
▣ 관련사례 ▣ ···················································································117
제5절 동물의 점유자의 책임 ·····································135
1. 동물점유자의 책임의 의의 및 성질 ······································135
2. 동물점유자의 책임의 요건 ······················································135
(1) 타인에게 가한 손해 ······························································ 135
(2) 면책사유가 없을 것 ······························································ 136
3. 손해배상책임자 ··········································································136
▣ 관련사례 ▣ ···················································································138
차 례 5
제6절 공동불법행위자의 책임 ···································139
1. 공동불법행위의 의의 ································································139
2. 공동불법행위의 태양 ································································139
(1) 협의의 공동불법행위(제760조 1항) ···································· 139
(2) 가해자 불명의 공동불법행위(제760조 2항) ······················ 143
(3) 교사？방조(제760조 3항) ······················································ 143
3. 공동불법행위자의 책임 ····························································145
(1) 연대책임 ·················································································· 145
(2) 배상의 범위 ············································································ 145
(3) 구상관계 ·················································································· 145
▣ 관련사례 ▣ ·················································································149
제7절 민법상의 위법성조각사유 ·······························163
1. 정당방위 ······················································································163
(1) 성립요건 ·················································································· 163
(2) 효 과 ························································································ 164
2. 긴급피난 ······················································································164
(1) 의 의 ························································································ 164
(2) 요 건 ························································································ 165
(3) 효 과 ························································································ 165
3. 기타의 위법성조각사유 ····························································166
(1) 자력구제 ·················································································· 166
(2) 피해자의 승낙에 의한 행위 ················································ 166
6 차 례
(3) 정당행위 ·················································································· 167
▣ 관련사례 ▣ ·················································································168

제3장 특별법상의 불법행위
제1절 자동차운행자의 책임 ·······································173
1. 의 의 ····························································································173
2. 자동차손해배상보장법의 적용범위 ········································173
3. 책임의 성립요건 ········································································173
(1) 자동차를 운행하는 자일 것 ················································ 174
(2) 자동차의 운행에 의하여 인적손해가 발생하였을 것 ···· 178
(3) 타인에게 인적 손해(사망, 부상)가 발생하였을 것 ········· 179
(4) 면책사유가 없을 것 ······························································ 180
▣ 관련사례 ▣ ···················································································182
제2절 의료과오책임 ·····················································207
1 의료행위의 의의 ·········································································207
2. 의사의 의료행위에 있어서의 주의의무의 판단기준 ··········207
3. 채무불이행으로 인한 손해배상책임과 불법행위에 의한 손해
배상책임의 경합 ·······································································208
4. 의료과오와 손해배상책임 ························································209
(1) 설명의무 ·················································································· 209
차 례 7
(2) 입증책임 ·················································································· 211
5. 책임의 주체 ················································································212
▣ 관련사례 ▣ ···················································································213

제4장 불법행위와 손해배상
제1절 불법행위로 인한 손해배상의 범위, 방법, 과실
상계 등 ·········································································239
1. 손해배상의 범위 ········································································239
(1) 통상손해 ·················································································· 239
(2) 특별손해 ·················································································· 240
2. 손해배상의 방법 : 금전배상주의 ···········································241
3. 손해배상액의 산정 ····································································241
(1) 의 의 ························································································ 241
(2) 배상액 산정의 기준시기 : 불법행위시 ·····························241
(3) 손해의 종류(손해3분설) ························································ 242
(4) 배상액의 산정방법(특히 생명침해 또는 신체상해의 경우)
·········································································································242
4. 과실상계 ······················································································247
(1) 의 의 ························································································ 247
(2) 피해자의 과실 ········································································ 247
(3) 피해자 이외의 자(피해자측)의 과실 ·································· 247
8 차 례
(4) 효 과 ························································································ 248
(5) 관련문제 ·················································································· 248
▣ 관련사례 ▣ ···················································································250
제2절 명예훼손에 대한 손해배상의 방법 ···············279
1. 명예의 의의 및 명예훼손의 위법성 ······································279
2. 명예훼손의 위법성 판정기준 ··················································279
3. 명예훼손에 대한 손해배상 ······················································280
(1) 요 건 ························································································ 280
(2) 금전배상과 명예회복처분과의 관계 ··································280
(3) 명예회복처분의 방법 ···························································· 280
▣ 관련사례 ▣ ···················································································282
제3절 배상액의 경감청구 ···········································284
1. 민법 제765조의 의의 ································································284
▣ 관련사례 ▣ ···················································································285
제4절 불법행위로 인한 손해배상청구권의 소멸시효
·························································································286
1. 의의 및 적용범위 ······································································286
(1) 의 의 ························································································ 286
(2) 적용범위 ·················································································· 286
차 례 9
2. 제766조 1항의 의미 ··································································287
(1) 기산점 ······················································································ 287
(2) 입증책임 ·················································································· 288
(3) 관련 사례 ················································································ 289
3. 제766조 2항의 의미 ··································································290
(1) 의의 및 성질 ·········································································· 290
(2) 기산점 ······················································································ 290

제5장 채무불이행으로 인한 손해배상청구
제1절 채무불이행과 손해배상청구 ···························293
1. 의 의 ····························································································293
2. 채무불이행의 태양 ····································································293
3. 손해배상청구권 ··········································································294
제2절 채무불이행과 불법행위 비교 ·························295
1. 공통점 ··························································································295
(1) 제763조에 의한 준용 ···························································· 295
(2)해석상 공통점 ·········································································· 295
2. 차이점 ························································································295
(1) 입증책임 ·················································································· 295
(2) 시효 ·························································································· 295
(3) 위자료 ···················································································· 295
(4) 피용자나 보조자 ···································································· 296
▣ 관련사례 ▣ ···················································································299

제6장 기타 불법행위 관련사례 ·············321
제1절 국가, 공공기관 관련 사례 ·····························321
제2절 실화책임 관련사례 ···········································332