장래 손해의 현재가치산정 : 이른바 중간이자공제를 중심으로

Abstract

The law of damages in Korea knows two ways of compensation for future losses : lump-sum payment and periodical payment, §751(2) Civil Code. When the court decides to order lump-sum payment for future losses, it needs to capitalize future losses, that is to calculate the present value of them. According to the case law in Korea, it should be done by the discount rate of 5% per year, which stems from the legal interest rate prescribed in §379 Civil Code, irrespective whether it adopts simple interest discount rate formula (so-called Hoffman formula) or compound interest discount rate formula (so-called Leibniz formula). And today’s court practice in Korea overwhelmingly calculates the present value of future losses by applying simple interest discount rate formula. This case law and practice cannot be justified, however. First, there exists no legal or reasonable ground to adopt the legal interest rate as the discount rate for the capitalization of future losses. The legal interest rate can be applied to gap-filling of contracts and, based on §397 (1) Civil Code, ordering interest after default, but not for capitalizing future losses, not to mention the legal interest rate, 5%, is totally unrealistic in view of today’s financial market. Second, the fixation of the discount rate extorts the choice between simple or compound interest discount rate formula. It is very clear that the simple interest discount rate formula is totally unrealistic in today’s financial system. The reason why the court practice adopts the simple interest discount rate formula despite that fact is to avoid severe under-compensation problem of the combination of the unrealistic discount rate and realistic discount formula. All of theses problems can be solved by adopting more realistic discount rate considering the market interest rate, the expected inflation, the expected increase of wage level and so on and again by adopting virtually the only realistic discount formula, the compound discount rate formula. This conclusion corresponds to the practice in many other jurisdictions including Germany, France, and the U.K.