하도급법상 징벌적 손해배상제도

Abstract

This article discusses the recent introduction and extension of punitive damages in the Korean legal system, which is largely rooted in continental laws of Germany. Notwithstanding the fact that the concept of punitive damages is based on common laws, Korea adopted the punitive damages system into the Fair Subcontract Transactions Act (the “Subcontracting Act”), which came into effect in 2011. However, as the concept of punitive damages itself is new in Korea, there still exist divergent views on whether the adoption of the punitive damages system, more specifically, the treble damages provision, is coherent with the laws of Korea from both the economic and policy perspectives. Moreover, there are ongoing debates as to the best way to interpret and apply the punitive damage provision. On May 28, 2013, the Subcontracting Act was revised to expand the scope of punitive damages further, to apply to (i) unreasonable determination or reduction of subcontracting prices, (ii) unreasonable cancellation of entrustment,and (iii) unreasonable return of goods. This revised Subcontracting Act will become effective starting November 29, 2013. Under these circumstances, this article discusses the law and economic basis for punitive damages as well as its policy basis, including its deterrence effects,victim compensation and the role as exemplary punishment. In addition, the concept of punitive damages as adopted in Korea is compared to those in United Kingdom, the United States, Germany and Japan. Critics of the punitive damage system point to the potential for windfall to plaintiffs, increases in complaints and related costs, double punishment,violation of the civil law principle of separation of civil and criminal liabilities. On the other hand, proponents argue that treble damages are necessary where the rate of detection is low for an egregious act. In practice, the enforcement of treble damages should be limited to cases in which there are actual damages and where the violating act is outrageous,malicious or wanton in nature. Furthermore, the courts should consider the financial ability of the defendant as well as the burden of proof on the defendant.