징벌적 손해배상에 관한 비교법적 검토

Abstract

Compensation system in Korea is that is object to complementary compensation system that is supplementing. And civil law article 750 is handling equally to deliberation or negligence. Under the current law, it is hard to believe that it will prevent the recurrence of resemblant crimes. Serious cases are happening due to ineffective compensation system for these accidents. They are either the compensation is not enough as compare to the loss ot it can not fully recover from the compensation. Therefore, it must be reinforced stringent controls especially when the attacker knew the faulty. Punitive damages punishes the injurer who commit malicious torts and prevents recurrence of crime by others. This concept appeared at first in the British Jurisdiction which is developed from Punitive damages in Anglo-American law. Currently it is being applied most vigorously in U.S.A. However, there is no other place that this is accepted in the continent legal system countries. Multiple compensation system that is resemblant to Punitive damages existed in ancient times in many countries including Korea in history. Funtion of Punitive damages can devide into natural side and metrical side. Natural sides consist of five functions. They are punishment and control, satisfactory function, law observance function, social compensation function and functions of social reformation and control. On the other hand, metrical aspects consist of three roles, namely coming off profit through torts, function of supplying manuscript costs of a lawsuit and lawyer expense and reparation function of compensating about spiritual damages. Problems also exist in punitive damages compensation system. Nowadays, few issues are discussed in U.S.A. It is unconstitutionality of punitive damages compensation system. and critics insist in problem of it's juridical aspect and of law's nature or calculation of compensation. Besides, there is problem to control civil and criminal liability, to relate with consolation money and to calculate compensation money. As Punitive damages was introduced and developed in Anglo-American law system, we must consider harmony with the current law, metric of calculation and reasonable punitive dameges compensation amount, criminal liability, excess compensation and good public order and customs. There are two ways of induction of new laws. One is induction through law analysis and other is induction through legislation. As judical officer's discretion is widely applied under the Anglo-American law and the continent legal system, and it is difficult to maintain legal stabilities. We must decide individual object field followed by legislative supplementation.