특허법상 懲罰的 損害賠償額 制度의 도입 여부에 관한 검토

A Study on Punitive Damages’ Importation into Korean Patent Law

Today, punitive damages over the patent infringement and its remedies is increasing controversy issue in Korean Patent Law. At a glance, punitive damages seems to be a better relief for patentees’ right. There are some rationales for imposing punitive damages: deterrence, retribution and compensation. Punitive damages has been an institution of common law for long times. As a general rule, however, punitive damages are not available in civil law countries in private actions, but are popular in many common law countries. In most civil law countries punitive damages is considered to be a penal sanction that may be imposed in criminal proceedings besides monetary compensation in civil actions, so called ‘double jeopardy.’ Punitive damages means exemplary and enhanced damage awards for tortfeasors’ conducts, and deters willful or malicious conducts in the future. However many critics find that there has been a dramatic increasing in damage awards, and gotten out of control. Recently they point out that this excessive awards of punitive damages should be done away with in America. This article undertakes whether it is reasonable thatwe import punitive damages into Korean Patent Law. By seeing how different legal systems show their theoretical and practical bases, punitive damages is not available in civil law countries because of fundamental disagreement. Compensatory damages should be limited recovery of damages to an amount that restores a party to its pre-injury condition. In addition to the theoretical disagreement there is a significant issue that punitive damages should be reformed taking to cap damages awards(multiple of compensatory damages). This article concludes that punitive damages is not appropriate in our existing legal system. Punitive damages is not recognized a better way to prohibit patent infringement cases in Korea under civil law legal system. In case of punitive damages importation for patent infringement cases exclusively, it may increase up to double or triple times of compensatory damages.