재산권침해와 위자료의 기능 －일본의 판례와 논의를 중심으로－

Abstract

In recent years, the consolation money has been discussed in various field such as unfair dismissal caused by the infringement of life or body, the sexual harrassment, the misuse of power, infringement of character like life disturbance, trust infringement, and the damage of property, etc. and also presented as various function such as restriction and complementary function as well as compensation function. Actually, the consolation money is widely accepted as ‘damage’ in the name of consolation money in various case in the precedent. This trend plays a certain role in helping victim, on the other hand, it helped to make the judgement structure and function of consolation money obscure, and then it depends too much on the discretion of judge without legal review in assessing the amount of consolation money or admitting the consolation money. What is it to be protected through the consolation money in each case?, and what function is it to be expected?, these questions should be reviewed as prerequisites in admitting the consolation money. Therefore, the recent precedents of supreme court, the precedent to define the reason to consider consolation money over the airplane accident (Supreme Court,24 Dec 2009, Sentence 2008Da3527), the precedent to restrict the complementary function of consolation money(Supreme Court, 23 Nov 1984, Sentence 84DaKa722) are so reasonable to restrict the method of assessing the consolation money which is comprehended without concrete review about the characteristic of consolation money in the name of consolation money although it is possible to confirm the property damage in the claim of consolation money caused by property damage. In addition, the function of consolation money should be comprehended through classifying character profit infringement type, attachment type, being raided and profitless type on the property damage. Firstly, for the character profit infringement, it is possible to admit the function of restriction through concrete example although it is originally the function of supplement in case the calmness of life was infringed, and also it would be possible to relief through the complementary function of consolation money in case the self determination is infringed. Secondly, for the attachment type, the function of restriction would be allowed in case it is not enough to solve through the function of supplement at first time. Finally,for the being raided and profitless type, the relief of victim should be fulfilled not through the supplement of damage, but through the function of restriction which reflect the imputation of the perpetrators.