손해배상산정의 기준시

Abstract

The courts of Commonwealth countries, traditionally, have held that damages are to be assessed as ofthe date of the breach of contract and have refused to consider events that have transpired between thedate of breach and that of trial. In the 1960s and 1970s, our courts had held that damages are to be assessed as of the date of trial. The modern trend of our courts, however, appears to measure damages by reference to the position of theplaintiff at the date when the loss was suffered, normally the date of the breach of contract. This is because what damages are to be assessed as of the date of the breach of contract is relatedto the duty of the victim to mitigate loss or damages inflicted. Another ground of this trend can be seenas convenience, namely, this can be a detour to avoid the discussion when damages should be assessed. However, over the years this rule has proved to be unjust and a number of exceptions to it havebeen formulated in the case law. Where there is a delay between the breach of contract and the date at which the injured partyacquires knowledge of the breach, it is often appropriate to use the date of knowledge of the breach forthe purpose of determining the quantum of damages. Since it was the earliest date at which they couldhave mitigated their damages. One determining factor governing the proper date for assessment of damages relates to the date onwhich the object of the contract could have been replaced. If a substitute product can be readily found ina stable market, the date of assessment should be the date of the breach since plaintiff has a duty tomitigate his damages. In other instances, it is appropriate to assess damages as at the expiry of the periodreasonably necessary to replace the goods. The Korean cases have similar position at this point. As was stated above, the date for assessment of damages vary according to facts of cases. Therefore,it can be found in various cases that there can’t be an absolute fixed rule like a mathematical formula inassessing damages flowing from a breach of contract or a tort. It is submitted that one of the most important consideration in compensation of damages that theobject of damages is to put the party complaining in the position he should have occupied “if the wronghad not been done”, or the position he would have occupied ‘if his rights had been observed’. It is,therefore, important to find an appropriate date for assessment according the specific material facts of eachparticular case.