재산상의 이익에 관한 자기결정권 침해와 위자료의 기능 - 일본의 판례와 학설을 중심으로 -

Abstract

This thesis reviewed whether the claim of consolation money would be allowed in case the decision making has been infringed in the property trades, and also what characteristic is the consolation money if it is allowed to claim. It is admitted as special damage in common view and precedent although there is no regulation about the claim of consolation money in case the creditor suffered from mental anguish because of property damage through default by civil law. In addition,the stand of common view and precedent like this also would be applied in case the expresser could not make a decision, and consequently the expresser suffered from property damage because of insufficient information or deliberate concealment or distortion of information. However, it would be a problem to accept the claim of consolation money judged by infringing 'the opportunity of making decision' in case it is impossible to settle the amount of damage because there is no property damage or it is difficult to prove even if there is property damage. It is difficult to solve the problem as previous common view which stand the margin theory about the property damage in this case. In the property trade, help by law would be tried at first time, and then the compensation of property damage by full recovery would be tried, however, in case of not admittance, the claim of consolation money would be accepted as additional relief steps through the complementary function. Therefore, the claim of consolation money should not be accepted in a row with compensation of property damage, and in case the property damage is accepted, the claim of consolation money should be involved in it. Furthermore, in case of trade practice that the object of decision making is the profit of property, the consolation money would be admitted just as the substitute for property damage. There are a couple of reasons to admit the claim of consolation money apart from the property damage because of infringing the right of self determination in medical malpractice suit. One is that the object of decision making is about character profit like life or body, the other is that it is difficult to define the damage as its characteristic of medical malpractice suit, and furthermore, it is not easy to solve the problem with the margin theory which comprehend the damage concept in property law. On the other hand, it is possible to solve the problem with the margin theory in case of property damage, so it should be prudent to admit the claim of consolation money apart from property damage due to the infringement of self determination. Then, the issue is that it would be possible to admit the profit of appropriate self determination as independent protection law in property behaviour. In this point, if the compensation of property damage is admitted, the consolation money would be accomplished for infringement of protection law. In conclusion, it is not accepted to consider the consolation money as the damage compensation through infringement of self determination developed by the field of medical malpractice.