민법관의 전환과 불법행위법의 기능변화에 관한 연구

Abstract

The contemporary philosophy of civil law has evolved from the modern civil law that used to be understood primarily in terms of property laws. If contemporary civil law can be characterized as the “basic law of civil society” or the “constitution of civil society,” at its heart exists personality rights. If contemporary civil law focuses on personality rights as compared to modern civil law that primarily deal with property rights, it is believed that, in the future, civil law will concentrate on personal rights as opposed to property rights. That is, it represents a change in civil law philosophy in which civil law as law of capitalistic society (law based on economic exchange) is transformed into one based on civil society (law of people). At the heart of such transformation in civil law is the importance placed on personality rights. Therefore, in this research paper, a priority is given to examining how modern civil law that emphasized the importance of property rights was transformed into contemporary civil law where personality rights are give the priority importance. Moreover, such transformation in civil law philosophy affects the function of tort law. If the compensatory damages was the fundamental nature of the existing tort law and preventive/deterrent function its auxiliary function, the transformation of civil law philosophy that places emphasis on personality rights will likely place them in equal par instead of separating them as fundamental and auxiliary functions. Furthermore, it is possible to predict that the preventive/deterrent function of the tort law will become a top priority. The paper examines prohibitory injunction and punitive damages, the core of changes in goals and functions of tort law from ex post to preventive remedial method. By focusing on examining the cases of personality rights violation in regards to prohibitory injunction that provides a clue to changes in the function of tort law, the paper claims that a shift to more concrete legislative method of prohibitory injunction has caused the changes in tort law to result in changes in civil law philosophy to emphasize personality rights. Moreover, the paper investigates punitive damages that are being considered for legislation. It first surveys the concept of punitive damages, its goal and function and legal reasoning. Then, it evaluates the needs and the possibility of introducing punitive damages. If punitive damages, a form of preventive/deterrent remedial method, is introduced, great changes are expected in the goal and the function of tort law. However, we do need to consider the side effect resulting from drastic changes in contemporary civil society. It must be noted that the changes in the goal and the function of tort law are causing ex post and preventive remedy method to evolve from vertical and dependent relationship to more parallel and equal relationship. It is expected that, in future society, preventive/deterrent remedy will become the primary, priority, preemptive and main function to replace compensatory damages, an ex post remedy. Therefore, this paper, based on the view that contemporary civil law, as opposed to modern civil law, which was a legal system that operated based on the relationship of property rights with emphasis on right to goods and credit, should be based on personality rights where respect for and value of human rights receive equal importance. The paper, by examining the changes in civil law philosophy and the change in the function of tort law, aimed to make Korean civil law more reasonable and minimize the gap between the ideal and the reality of the current civil laws.