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KCI 등재
자원봉사자의 행위에 대한 비영리 자선단체의 사용자책임
Abstract : Non-profit Charities` Respondeat Superior to the Acts of Volunteers
김서기 ( Seo Gi Kim )
법과 사회 44권 127-144(18pages)
UCI I410-ECN-0102-2014-300-001581211

In this Article, I`d maintain that we shoud not lay respondeat superior as a vicarious liability to the acts of volunteers on non-profit charities. To demonstrate this argument, I examined the Roman law and the Germanic law. In the Roman law and the Germanic law alike, respondeat superior as a vicarious liability was limited to acts where there is economic gain. The Roman Empire relied heavily on slavery, and the owner of the slave profited from ownership. In Germanic agrarian society, father was liable for the acts of those in the household. For there is economic gain to having a large household in agrarian society. In other words, at those times, more people meant more productivity. In Korea, according to main cases, theoretical basis for respondeat superior is that if employer profits from employee`s act, the former should take losses from the latter`s act, likewise. As a result, according to these cases, if employer does not profit from employee`s act, he should not bear respondeat superior. Business is primarily interested in making profits, while non-profit charities are primarily interested in giving charitable goods and services. Therefore, non-profit charities should not bear respondeat superior to the acts of volunteers. In the United States, theoretical bases for inapplicability of respondeat superior between volunteers and charities are the following: trust fund theory, inapplicability of respondeat superior to charities theory, implied waiver of liability theory, public need for charities theory. According to the trust fund theory, a charity must use its donated funds only for the charitable purposes under which it received the funds. Thus, the donated funds cannot be used for the charity to bear respondeat superior. Under the inapplicability of respondeat superior to charities theory, a charity should not bear respondeat superior because it reaps no profit from its activities. The implied waiver of liability theory holds that the beneficiary of a charity has impliedly waived respondeat superior by accepting the benefits from the charity. The public need for charities theory is that charities should not bear respondeat superior for their volunteers` torts because respondeat superior may lead to their extinction. The theory holds that charities provide vital services to society and their survival must be ensured through respondeat superior immunity.

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