재산권 침해와 위자료 청구권

Abstract

When property rights are infringed by tort action or non-performance of obligation, cases are different from infringement of personal rights, such as right to life, liberty, etc. which typically can call for consolation money. In general, there may be no mental damages from the first place, and even if there are mental damages, it can be repaired by compensation of property value infringed. Yet, there are occasions when consolation money needs to be rendered in cases of violation of property rights. This article examines when consolation money can be awarded in property rights infringement case(especially by tort action or non- performance of obligation), how mental damages can be quantified and which category of damages it could be classified based upon comparative studies and case studies. The Court’s basic standpoint in Korea and Japan is that if mental damages which cannot be restored through compensation of property value is generated by infringement of property rights, and offender or debtor knew or could have known such condition, this consists a special condition, in which consolation money could be acknowledged. This interpretation accords with Article 763 of Korean Civil Code that correspondingly applies Article 393. Mental damages, which cannot be restored through compensation of property value in property rights infringement case, can be categorized into two: (i) Damages which are the result from the violation of property rights itself and (ii) damages which are the result from the additional personal damage apart from the violation of property rights. In case of (i), it is special damage under Korean Civil Code requiring foreseeability as a condition, but in case of (ii), it would be rational to put it as general damage under Korean Civil Code. Strictly speaking, only (i) is consolation based on infringement of property rights in a narrow sense. Thus it would be preferable to use explanation rights appropriately, and clarify subject matter of lawsuit.