Earticle

초록

영어

Recently, it is more and more important whether national or local government is responsible for the flaw of road, or not. According to the judicial precedent of the Supreme Court, national or regional government can be responsible for the flaw of the road surface such as ice formation, stone obstacle and so on, and for the flaw of the traffic equipment such as street tree, signal lamp and so on. And recently, the Supreme Court decided that the government is responsible for the noise of the road that cannot be unendurable. It is difficult to find out the criterion of responsibility of government. The Supreme Court ruled that government is not responsible when the government cannot foresee or avoid the flaw of road. Namely, the possibility of foreseeing or avoiding the flaw is the criterion of responsibility of government. It is more important, who between the government and the private person prove the possibility of foreseeing or avoiding the flaw. On this question, the precedent is indistinct. I think that the government should prove the impossibility of foreseeing or avoiding, in order to protect the victim. According the precedent, for the flaw of the road that is not accomplished and is not used by the general public, national or local government is not responsible. Considering that a national or a local government cannot manage the road that is being constructed, I think it is right. Whether national government is responsible for the flaw of the Expressway or not, is in a controversy. On this question, the precedent is indistinct. I think that government can be responsible.

목차

Ⅰ. 서 론
 Ⅱ. 도로 하자의 유형별 검토
  1. 서
  2. 도로노면상의 하자
  3. 도로관련시설의 하자
  4. 소음 등 무형물에 의한 하자
 Ⅲ. 예견가능성과 회피가능성의 문제
  1. 하자의 유형과 ‘예견가능성 및 회피가능성’
  2. 판례의 태도에 대한 학계의 견해
  3. 입증책임의 문제
  4. 판단기준의 문제
 Ⅳ. 도로의 성립과 하자의 인정여부
  1. 도로의 성립
  2. 도로의 성립 이전의 하자에 대한 책임 문제
 Ⅴ. 도로의 관리청
  1. 고속국도이외의 도로의 경우
  2. 고속국도의 경우
 Ⅵ. 결 론
 참 고 문 헌
 

키워드

도로 하자 고속도로 도로 소음 예견가능성 회피가능성. road flaw expressway noise of road possibility of foreseeing possibility of avoiding.

저자

• 류광해 [ Ryu, Kwang-Hae | 충남대학교 법학전문대학원 조교수, 변호사. ]

참고문헌

발행기관

간행물