Structurally, joint and several liability in American torts may be similar to one in Korean torts. First, several tortfeasors who acted in concert are jointly and severally liable for damages that they caused. Several tortfeasors act in concert if (i) they have committed tortious conduct under a common design, (ii) they knows that the other"s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other, or (iii) one gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person. This can be compared to Korean Civil Code 760 section (1) and (3). Second, several tortfeasors are jointly and severally liable for indivisible damages that they independently caused. This can be compared to Korean Civil Code 760 section (2).
In the Unite States, the joint liability of multiple tortfeasors for indivisible harm has loosen because of the development for a rule of comparative liability and the confirmation for the principle of one"s own responsibility. In fact, the development for the joint and several liability for independent tortfeasors originally comes from the difficulty by plaintiff to prove the multiple causations between each tortfeasor and damage. In some situation, courts have shifted the burden of proof from plaintiff into defendant. This shift provokes to increase the number of joint and several liability. This increase brings out social injustice for each tortfeasor to liable for over his own share of responsibility.
Despite structure similarity between two countries, individual state in the United States has passed own legislature to differently apportion the share of responsibility for several tortfeasors. The first type of jurisdiction purely keeps joint and several liability for independent tortfeasors. The second type of jurisdiction abolishes joint and several liability for independent tortfeasors but establishes several liability for them. The third type of jurisdiction is based on the first model but reallocates the uncollectible portion of the damages to all other parties when one of tortfeasors is unable to pay for own liability. The fourth type is about hybrid liability based on threshold percentage of comparative responsibility. Only tortfeasors who are assigned a certain percentage of comparative responsibility determined by the statute are jointly and severally liable for the indivisible harm. The last type is about hybrid liability based on type of damages. Tortfeasors who cause an indivisible injury are jointly and severally liable for the economic damages portion of the recoverable damages.
In Korea, joint liability by multiple tortfeasors is broadly interpreted to protect plaintiff. Recently, some supreme court cases have not recognized joint liability but imposed several liability among multiple tortfeasors. I believe that supreme court has made that decisions to cure injustice among tortfeasors. However, reasonings for these decisions have not been well-formed yet. It is the time to compare other legal system and learn how to deal with multiple independent tortfeasors for individual harm.