일시배상금에서 생명보험연금으로의 전환적 논의 - 미국의 Structured Settlement 제도를 중심으로 -

Abstract

Lump sum compensation is generally accepted for the payment of damages in Korea according to its tort law. However, this lump sum compensation can be unreasonable compared to periodic payment due to its uncertainty in estimation of future damages. It leads to an under-estimation or an over-estimation of compensation which is awarded to victim, therefore does not accord with original intention and purpose of compensation system for damages, which is fair and right apportionment of loss. This problem can be taken into consideration by comparing other nations’ legal practices. In Korea and Japan, the plaintiff would mostly claim damages in lump sum and the court would accept the claim as such, ruling the compensation to be paid accordingly. In Germany, a detailed regulations about periodic payment of damages are prescribed in BGB and in ZPO, however, lump sum compensation is preferred to periodic payment in practice. Unlike in Korea, Japan and Germany, a more diversified periodic payment options are available by precedents in France. Especially in the case of traffic accidents, index-linked compensation is adopted by a special law. This article introduces structured settlement and reviews its application to korean legal system. Structured settlement is another type of periodic payment that is different from other periodic payment methods in continental law. In structured settlement, a company (most of time, a subsidiary of life insurance company) would take over the capital (normally, benefits from an insurance company) and it would eventually provide annuity to victims. The system could have prevailed in USA because only the life insurance companies of financial soundness were allowed to run such business and because it was supported by tax-free policy which excluded such compensation from taxation (that is, an income tax exemption). Not only can the system overcome the problems of lump sum compensation (the problem of early exhaustion and the problem of uncertainty in estimation), but also it can enable a various pension plans which could reflect inflation and meet the plans of the victim or his/her family by using highly developed underwriting and other financial skills. It is time to break from lump sum compensation system which stirs up many different problems. And the structured settlement system in USA has many implications for such an attempt.