금지(유지)청구권에 관한 비교법적 고찰 –대한민국과 미국을 중심으로–

Abstract

It may be injunction and damages that are two major remedial measures to enforce private laws. Damages have a function to compensate a victim's losses on the case of the infringement of its entitlement not only under common law jurisdictions but under civil law jurisdictions. However, the approach of the common law to injunction is said to be totally different from that of the civil law. Every infringement of entitlement may be prohibited by injunction in the United States, if the requirement for injunction is met, regardless of the kinds of underlining rights. But, courts in Korea will vest a plaintiff with injunctive relief only if he or she succeeds in proving the violation of his or her proprietary rights or quasi proprietary rights except for the rights created by statutes to furnish an injunctive power. The Korean style enforcement of an injunctive relief shares its common characteristics with other civil law countries including Japan and Germany. It is said that such an enforcement may be justifiable for the consideration of foreseeability. It is strongly required that the basis for new rights should be foreseen. However, It is easy to predict that all kinds of remedial measure can be provided if the rights are violated. Therefore, foreseeability can't be a justification for the exclusion of the application of injunction. So, the practice of common law in an injunctive relief has a considerable implication to the application of injunction in Korea.