손해배상의 범위 -영국법‧CISG‧유럽계약법 원칙과 한국법의 비교를 중심으로-

Abstract

Our civil law about the range of damages is based on the restrictive compensation. The range of compensation is limited to the normal damage. but it also takes exceptional responsibility for the special damage that the debtor predicted or was able to predict during the non-performance. The Normal damage aims for all damages in a causal relationship, but damage in a causal relationship is just a part of the whole damage that occurred. For the special damage, it limits the range of compensation on the standard of predictability. The range of compensation, regardless of the debtor’s no-fault, light-fault, deliberate, is consolidated. It looks that it is the uniform standard and guarantees instant safety. However, in the society where each individual’s social life is diversely and complicatedly involved, the number of damage included in the special damage has increased, but the Compensation Act that manages this still stays in the 1800s when the restrictive compensation was found. As a result, the Compensation Act that could be divided into the normal damage and the special damage, is being criticized that it cannot protect the creditor’s damage. Moreover, it cannot convict the tort or the non-performance done on purpose by companies. The current situation stands for the need of the fundamental change of the law regarding the range of compensation. It means, we need to reconsider the principle that it needs to be based on the normal damage, and regarding the special damage, it only can compensate depends on predictability. Also, the possibility of being criticized will be solely on the debtor (attacker), so it is not persuasive that the range of compensation should be limited by the predictability. All damage that is in misconduct or the non-performance, and the natural causality should be included in the range of compensation. The causal relationship should be abolished. There has been some criticism that it is too harsh to the attacker or the debtor, but considering that the possibility of criticism is solely on the debtor, it is not a convincing opinion. The issue of being harsh should only be considered as reference when deciding the amount of damages. Therefore, putting all damage in the natural causality in the range of compensation, and alleviate the amount of compensation money by considering the debtor or the attacker’s financial situation might be better way to reflect the real society. If some think that this regulation is excessive, at least regarding the non-performance or the tort on purpose, the limitation of the range of compensation by its predictability should be abolished. Even in this case, there should be some alleviation of the amount of compensation money by considering debtor or the attacker’s financial situation.