징벌적 배상제도의 입법론적 연구

A Legal Study on the Punitive Damages

&nbsp;&nbsp;Punitive damages were developed as a way to punish defendants found to have acted maliciously. The punitive damage aspect of an award therefore, represents a deterrent to future such malicious or otherwise irresponsible and harmful actions. Punitive damage awards have evolved to become an almost routine aspect of most civil litigation. Perhaps, more troubling is the fact that punitive damage awards have become so large that they often not only dwarf, but also bear little relationship to actual compensatory awards. Larger and larger punitive damage awards have literally begun to distort the litigation process and negatively impact settlement attempts.<BR>&nbsp;&nbsp;Punitive damages were developed as a way to punish defendants found to have acted maliciously. The punitive damage aspect of an award therefore,represents a deterrent to future such malicious or otherwise irresponsible and harmful actions. Punitive damage awards have evolved to become an almost routine aspect of most civil litigation. Perhaps, more troubling is the fact that punitive damage awards have become so large that they often not only dwarf, but also bear little relationship to actual compensatory awards. Larger and larger punitive damage awards have literally begun to distort the litigation process and negatively impact settlement attempts.<BR>&nbsp;&nbsp;The American Tort Reform Association (ATRA) urges states to rein in punitive damage awards and recommends the following specific reform measures:<BR>&nbsp;&nbsp;Establish a liability trigger to reflect intentional tort origins and quasi-criminal nature of criminal nature of punitive damage awards - actual malice.<BR>&nbsp;&nbsp;Require clear and convincing evidence to establish punitive damage liability.<BR>&nbsp;&nbsp;Require proportionality in punitive damages so that punishment fits the offense.<BR>&nbsp;&nbsp;Enact federal legislation to address multiple punitive damage awards (to protect against overkill, due process violations, and help preserve ability of future claimants to recover basic out of pocket expense and pain and suffering.<BR>&nbsp;&nbsp;So far, 19 states (Alabama, Alaska, Arkansas, Colorado, Connecticut, Florida, Georgia, Idaho, Indiana, Kansas, Mississippi, Montana, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Texas, and Virginia) have enacted punitive damage reform legislation. In 2004, Mississippi (HB 13a) became the latest states to take steps to rein in punitive damage awards.<BR>&nbsp;&nbsp;Until now, Korean courts do not award punitive damages as a matter of public policy, and Korean law prohibits the enforcement of punitive damage awards obtained overseas.<BR>&nbsp;&nbsp;The most recently, Korean NGOs and a government “The Presidential Commission on Judicial Reform” try to make a Draft “Korean Punitive Damages Act” in 2006. But the contents of the draft was very different from the american tort reform.<BR>&nbsp;&nbsp;The Korean Government have to try to rule that punitive damages must be reasonable, as determined based on the degree of reprehensibility of the conduct, the ratio of punitive damages to compensatory damages, and any criminal or civil penalties applicable to the conduct.