Tort Law in South Korea
Introduction
South Korean tort law (delict law) is codified in Part III (Obligations), Chapter V (Torts) of the Civil Code (Articles 750–766). The law draws from the German BGB (paragraphs 823–853) and Japanese Civil Code. The general tort clause (Article 750) establishes liability for intentional or negligent acts causing harm. Special statutes supplement the Civil Code for product liability, medical malpractice, and state liability.
General Principles
Article 750 — General Tort Provision
“Any person who causes loss or damage to another person by his intentional or negligent act in violation of the law shall be liable for damages.”
The Supreme Court interprets “violation of the law” broadly to include violations of statutes, regulations, and the general duty of care.
Elements of Liability
To establish tort liability, a plaintiff must prove:
- Intent or negligence by the defendant
- Illegality (violation of law or duty of care)
- Causation between the act and damage
- Actual damage (pecuniary or non-pecuniary)
Special Tort Provisions
- Joint tortfeasors (Article 760): Jointly and severally liable
- Employer liability (Article 756): Vicarious liability for employee acts within the scope of employment
- Animal keepers’ liability (Article 759)
- Structure defect liability (Article 758)
Strict Liability
Strict liability under the Civil Code applies to:
- Structure defects: Owner of a building or structure is liable for defects causing harm (Article 758)
- Animal harm: Keeper is strictly liable (Article 759)
- Joint hazardous activities: Participants in inherently dangerous activities
Product Liability
The Product Liability Act (제조물책임법, 2002) establishes strict liability for product defects:
- Defect definition: Manufacturing defect, design defect, or inadequate warning
- Defenses: Development risk defense (state of the art), compliance with mandatory regulations, component manufacturer defense
- Damages: Personal injury and property damage (not damage to the product itself)
- Limitation period: Three years from discovery, 10-year absolute limit
- Liability cap: No statutory cap on damages
Medical Malpractice
Medical malpractice is litigated as a tort claim under Article 750. Key features:
- Standard of care: Average physician in the same specialty (not the highest specialist standard)
- Informed consent: Physician must disclose diagnosis, treatment options, success rates, and risks
- Burden of proof: The Supreme Court has relaxed the evidentiary burden, applying res ipsa loquitur in appropriate cases
- Statute of limitations: Three years from discovery, 10-year absolute limit
State Liability
The State Compensation Act (국가배상법, 1967) governs state liability for:
- Public official misconduct: Intentional or negligent acts by public officials in the course of duty
- Defective public facilities: Liability for harm caused by defective roads, public buildings, etc.
- Limitation: The Act imposes caps on damages (lower than ordinary tort damages)
Emotional Distress Damages
The Supreme Court recognizes damages for emotional distress (non-pecuniary damages, wiryulgeum) where a legally protected interest is infringed. The court determines amounts based on the nature of the infringement, the plaintiff’s suffering, and equitable considerations.
Conclusion
South Korean tort law provides comprehensive compensation for harm caused by intentional or negligent acts. The Civil Code’s general clause has been flexibly interpreted by the Supreme Court, while special statutes address product liability and state compensation. The system continues to develop, particularly in response to mass torts and technological change.