손해의 산정(Measure of Damages) - 채무불이행의 경우에 있어서 신뢰이익의 손해배상을 중심으로 -

Abstract

The scope of civil damages is determined pursuant to Civil Law Section 393, but for this purpose it is useful to use the terminology popularised by a famous article by Fuller and Perdue, which is resitution interest, reliance interst and expectation interest. In the beginning, it is not in doubt in the Korean Supreme Court that primary basis for calculating contract damages is by reference to the plaintiff's loss of bargain. Afterwards, the Korean Supreme Court has considered reliance interest as well as expectation interest for calculating contract damages. In principle, it seems that the plaintiff has a free choice as to the basis for quantifying the loss that has been suffered. There no longer is need to adhere to a single approach to the award of damages. There is a view that it is an abstract formalism to distinguish reliance interest from expectation interest in quantifying any particular loss or damage. But the contract may be so speculative that it is unclear what, if any, profit it would have made. In this case the innocent party could incur expenditure in reliance upon the existence of the contract. Accordingly, it may be more easier to prove the expenditure loss than expectation loss. Therefore it is useful to differentiate reliance interest from expectation interest. Where a defendant has to compensate to a plaintiff reliance interest for damages from a breach of contract, the reliance interest can be loss in the usual course of things or loss resulting from special knowledge, which is the obvious view of the Korean Supreme Court. It is apparent also that the plaintiff's expectation of a benefit may put a ceiling on recovery under reliance loss.