징벌적 손해배상에 관한 연구

A Study of Punitive Damages

This thesis deals with so called punitive damages which originated in the Common Law courts. Punitive damages are damages on an increased scale, awarded to the plaintiff over and above what w ill barely compensate him for his property loss, where the wrong done to him was aggravated by circumstances of violence, oppression, malice, fraud, or wanton and wicked conduct on the part of the defendent, and are intended to solace the plaintiff for mental anguish, laceration of his feelings, shame, or else to punish the defendent of his evil behaviour or to make an example of him. Unlike the compensatory or actual damages, punitive damages are based upon an entirely different public policy consideration - that of punishing the defendent or of setting an example for similar wrongdoers, as above noted. In case in which it is proved that a defendent has acted willfully, maliciously, or fraudulently, a plaintiff may be awarded exemplary damages in addition to compensatory or actual damages, for which reason the constitutionality of punitive damages is still questioned, especially in America, we tried to settle this by elaborating the arguments in America. The punitive damages pose three problems for us, of which on the third our attention is focused: (a) whether it can be introduced into our legal system, (b) what to do in case a foreigner claims punitive damages in our court, (c) W hat effect to give in Korea to a foreign decision awarding punitive damages. To get the third in focus, we examined the BGH s decisions first, and then our lower court s decision - only case of its kind in Korea. In conclusion, a statutory rule of proportionality is highly recommended for the validity of punitive damages.