손해배상액 산정 기준시(基準時)에 대한 판례 입장의 이론적 고찰 (Ⅰ)

Abstract

Whenever damages arising from a breach of contract is to be assessed by reference to the market price of the relevant goods or services, Korean courts have rather consistently ruled that the market price as of the date when the relevant damages claim is deemed to have arisen as a matter of law be picked for the computation of damages. This article critically analyzes the theoretical and normative grounds of the ‘rule’ as well as traces its historical and practical background for scrutiny. Based on that, the author observes that the rule’s foundations are logically tenuous at best and that it is liable to mass-produce unfair results. The rule apparently represents a relic of the past before certain advancement took place in our jurisprudence in respect of, e.g., the conceptual distinction between ‘scope of losses’ which is the domain of Article 393 of the Korean Civil Code on the one hand and ‘monetary assessment of such losses’ which has little to do with the clause, on the other hand. The rule also predates the realization that Article 393, at least in terms of its origin, does not so much have to do with the ‘adequate causality’ doctrine devised by the German jurisprudence as with the English law rules as showcased in Hadley v. Baxendale. The Korean courts’ position traces its origin to a famous Japanese court ruling of 1926 generated out of a socio-economic and legal background that is starkly different from the reality Korean courts are faced with as of today. This author suspects that the current state of the rule as well as the rigidity and uniformity with which the courts are applying it as if it were a ‘one-size-fits-all’ solution across all the diversity and subtlety of fact patterns before the bench exemplifies that legal doctrines and concepts imported to our jurisdiction need almost always be brought to rigorous scrutiny in terms of validity, compatibility and their true position and usefulness at home before letting them harden into a rigid rule in this land. This article further argues that the legal question of the ‘reference date’ cannot be addressed in any meaningful fashion without delving deeply into such more fundamental questions of the damages law as the defining of the proper realm of Article 393, to what extent certainty of damages should be proven and how the duty of mitigation fits into our civil law system, in respect of which our jurisprudence has yet to fully develop and settle. This article is the first half of the author’s thoughts concerning the ‘reference date’ (or the ‘date-of-breach’ rule) problem and, as such, will be followed by the next part, where the aforementioned ‘more fundamental’ issues will be elaborated as they relate to the ‘reference date’ issue and attempts will be made to suggest alternatives to the current rule.