채무불이행에서 정신적 손해배상의 청구

Abstract

Korean civil law is not accepted for mental pain at the contract. so, mental damage in civil law was admitted only law tort. However, If defaults on contracts, mental damage can also occurs. The contract will get the pain more illegal activity. Because to do contract is based on the trust. The range of compensation is gradually getting wider. Because to admit mental damage to the detriment. The compensation for emotional distress will be also accepted by court's cases. But many supreme court deal with mental damage just as special damage. Therefore, mental damage of obligee could not be compensated. But It is necessary for some cases to accept the compensation for mental damage caused by the purpose of contract. Rather the case of contracts based on a clear intention Displays the trust would some cases give a bigger emotional distress than tort. This means that there is not in the public, considering the transition could be the premise in agreement that target specific people, not only property damage by default, compensation for mental damages also be recognized clearly necessary should. In addition to the recognition of the moral damages, even if the debtor does not fulfill its obligations intentional or gross negligence. But mental suffering is the calculation of damages, with clear evidence that it is necessary because it can be evaluated differently depending on personal differences. A judicial precedent regards a compensation for mental damages caused by a default as a supplementary function. It is right to deny a compensation for mental damages caused by a default at present. But Korean civil law we have to protect a right of mental damaged creditor. Therefore, estimates of emotional distress will consider factors such as the victim and the offender's social status, motivation for applying and deliberate whether to be determined in accordance with the social convention.