‘징벌적 손해배상제도’의 변형과 정착 - 오해와 진실을 바탕으로 -

Abstract

The outcomes from unfair transactions and torts must be not only unfair and but also unjust. One of the most important roles for legal compensation is to restore unfairness outcomes into the pre-occurrence state. If the losses from unfair transactions and torts are transferred by fully compensating victims, the unfair state may be restored to the fair state. The question is how to measure the damage and how much to compensate. Each country's legal system play an important role by establishing legal principles applying them to actual cases. Despite this process, if unfairness is not resolved, it is said to be injustice. Even if the unfairness is cured through the liability act, it is often witnessed that similar outcomes from unfair transactions and torts are repeated. In other words, the liability law is unlikely to achieve preventive effects because it may not sufficiently restore the stage of victims. The easiest way to improve preventive effects is to increase the damage awards. The legislature in Korea has made efforts to increase by individual legislation for the past decade. Recently, legislation has been proposed to compensate up to five times for damages, especially due to unfair transactions. In general, unfair transactions occur in a varied range of transactions (n1), which have a very negative impact(Q1) on the market, but the damage (L1) caused by each victim is not significant. Illegal activities are relatively large in scope (Q2) and type (n2), but the damage (L2) caused by each victim is very significant. The better way to correct unfair trnadactions is to collectively rather than individual methods, and illegal activities are to be individual methods efficient. There may be ways to recover damages caused by unfair legal activities and easily recognize victims' right to terminate contracts, and current laws should focus on resolving unfairness by strengthening their right to terminate contracts. It is relatively hard to find a way to restore the damage caused by illegal activities other than by transferring the victim's damage. Three times and five times compensation in calculating the damage would be very reasonable in the reality of our country's liability for illegal activities. It is regrettable that the so-called ‘punitive damages’ legislation currently being pushed in Korea is mainly carried out in areas related to unfair transactions, even though it should be focused on the area of illegal activities for preventive roles. It is no exaggeration to say that the legislature's attitude toward it is almost indifferent, especially in areas of illegality, such as the Humidifier Sterilizer, which caused more deaths than the Ferry Sewol case, even though a stronger 'punitive damages' system needs to be introduced. I would like to suggest the scope and role of the ‘punitive damages’ in Korea by researching the punitive damages in the U.S. and to consider what the Korean judiciary and legislature should do for justice.