징벌적 손해배상제도의 법이론적 문제점과 그 극복방안

Abstract

Punitive damage was introduced to Korea for the first time on March 29th 2011 through the amendment of ‘하도급거래의 공정화에 관한 법률’. On May 28th 2013, the amendment of the aforementioned legislation further extended the sphere of the punitive damage. Since then, there has been much debate in the assembly involving arguments for and against the adoption of this legislation into the ‘가맹사업공정화에 관한 법률’. Despite the general consent that punitive damage carries the advantage of deterring illegal conducts and protecting the economically weak, there are still much objection to the actual adoption or expansion of the application of the law. The main reason is that the punitive damage bears the characteristic of quasi-criminal sanction which contributes to the purpose of criminal law in the form of integration of the punishment of criminal law and compensatory damage of civil law. This paper intends to find measures that will allow punitive damage system to be established as an effective and valuable system in this country. For this purpose, the legal characteristic of punitive damage adopted in Korea is investigated. Next, the following improvement plans are proposed to remedy the shortcomings of the current punitive damage in Korea after examining the theoretical problems the legislation possesses:Firstly, the ‘severe negligence’ must be included in the legal requirement at the very least. Secondly, higher level of proof than the preponderance of evidence must be demanded. Thirdly, the subject that will receive compensation should include not only the victim, but also the state or public institutions.