우리 법상 배액배상의 도입이 징벌적 손해배상을 명한 외국재판의 승인·집행에 미치는 영향 - 대법원 2022. 3. 11. 선고 2018다231550 판결의 평석을 중심으로 -

Abstract

Hitherto Korean case law has consistently rejected the recognition and execution of foreign country judgments awarding punitive damages under the so-called “public order requirement” of Article 217 (1) 3 of the Civil Procedure Act. Punitive damages, based mainly on the ideology of “punishment”, was unacceptable from the standpoint of Korean civil liability law, which adheres to compensatory damages. However, Korean law has gradually accepted the notion of punitive damages in more than 20 legal areas since 2011, in the form of treble or quintuple damages. This meant that Korean courts can no more hastily jump into the conclusion that if the compensation awarded by the foreign country court is beyond the scope of compesatory damages, it violates the public order of Korea. Supreme Court Decision 2018Da231550 Decided March 11, 2022 (hereinafter referred to as “the Decision”) is the leading case in which Korean Supreme Court officially declared its changed stance on recognition and enforcement of foreign country judgments awarding punitive damages. In the midst of introduction of statutory multiple damages, the change in the Court's view is not only inevitable, but must. However, it is doubtful whether the Court's changed view can be applied in the matter of the Decision. Strictly speaking, what Korean law has adopted is statutory multiple damages, not punitive damages discussed in common law countries. In Korea, the main motives of multiple damages are at promoting compensation and encouraging law enforcement, rather than punishing defendants. Also, each multiple damages law has different functions and the upper limit of compensation. That is to say, Korean civil liability law is still governed by the principle of compensatory damages, and exceptions are only granted in limited areas. Thus, the foreign country judgments awarding compensation beyond the scope of compensatory damages do notviolate the Korean public policy, only if multiple damages is recognized in the corresponding "area" in Korea. Some might say that the “area” means individual “provision”, while others might think of “act” or “legal field”. However, since there is no objective standard on how far can be codified in the same “act” or how far can be categorized as in the same “legal field”, the scope of “area” will gradually expand, ultimately leading to the radical conclusion that every foreign country judgment ordering punitive damages is within the scope of Korean public order. For the clarity of judgment, the predictability of parties, principle of reciprocity, and the continuity with conventional case law, it is necessary to determine the scope of “area” based on “provision”. Nevertheless, the Decision judged the “area” based on “act” or “legal field” using the expression “at least”, suggesting the possibility of expanding the scope of “area” in the future. Considering that the purpose of treble damages under the Hawaii Revised Statutes is at suppressing violation through punishment unlike Korean law, and that legislators deliberately excluded “unfair trade practices” which corresponds to “unfair methods of competition” in Hawaiian law from the subject of treble damages in Korean Monopoly Regulation and Fair Trade Act, the Decision is immoderately “bold”. Meanwhile, although not an issue in the Decision, it is necessary to think about whether and how to limit the recognition of the so-called “excessive compensatory damages”. In the past, lower courts limited the recognition if the compensatory damages awarded by foreign country court seems excessive, and the Supreme Court implicitly agreed with the view by approving such lower court judgments. Since the establishment of Article 217-2 (1) of the Civil Procedure Act however, recent Supreme Court decisions have been continually ruling that recognition of compensatory damages ordered by foreign country court cannot be restricted based on Article 217-2 (1) and (although not explicitly stated) Article 217 (1) 3. Since it is impossible for the court to provide the mathematical bright line on the amount of compensation that violates Korean public order, it is reasonable not to limit the recognition of the compensatory damages awarded by foreign country court regardless of the amount.