The most important thing for the parties involved in the compensation system for damage can be said to be its compensation amount, and in the view of the fairness it's reasonable to make its exemption or reduction in faveor of the harmer's interest paralleled with the injured's one if the injured is partially responsible for any damage. It's the System of Fault Setoff that both parties justly share its responsibility with each other in this case.
The 396th Article of our Civel Law reads that the court should take into consideration when judging its responsibility and the amount of the damage compensation if the debtor has made some fault in the nonfulfillment of an obligation, and the provision of this article shall apply also in case of the damage compensation resulted from an illegal act(763rd A.)
Because our Civil Law includes such simple provisions as the above, its practical solutions are mainly dependent on the doctrines and the precedent cases related.
Therefore, this study looks deeper into some essential requisites necessary for applying the principles of the Fault Setoff to the case, substantially taking the fault of the injured into consideration for the sake of the exemption or the reduction of its compensation amount.
First of all, the study examines some requisites as the imputation reason of the harmer, that of the injured, the fault of the injured, and the causal relationship of the damage occurrence, comparing its theoretical doctrines and precedent cases each other.
To sum up, in order for the harmer's reason of imputation to be effective, the harmer should burden its responsibility for his or her illegal, and in this case the injured's fault can be the reason of the Fault Setoff if not against the principle of Trust and Integrity, regardless of the harmer's intentional illegal act. And when the liability without fault falls on the harmer, the injured's fault that caused the damage occurrence shall be the reason of the Fault Setoff.
When taking the position that the injured's fault as a reason of the imputation should be the same as that of its originated meaning, it's reasonable to consider the harmer's fault as same in nature, but in order for the injured's fault to be appealed, the injured should have the capability of sane judgment even if not that of liability.
The precedent cases seem to have a tendency to accomplish the justice of the damage share by using the conciliative function given from the Fault Setoff, and its contents can be summed up as follows;
First, the injured's fault should be considered without exception even though is trivial. Second, the meaning of the "injured's fault" should cover not only the "violation of attention liability against others" but also the "simple carelessness" which can be thought to accelerate the occurrence or enlargement of the damage. Third, the injured's fault capability is enough only if the sane capability lower than that of the harmer's liability, and this capability is said to be attained when one gets 8 years old. Fourth, the injured's fault is considered same as that of the injured parties by using such a broader concept like the "injured parties" including the injured's supervisor, user, etc. who can be identified with the injured, even without the injured's direct fault.
In summary, because the issue of Fault Setoff involves a conflict of interests sensitive between the parties related and the controversy mixed with the theory and the practice, the issue needs further examination.