불법행위로 인한 손해배상채권 중 위자료 증액 및 지연이자 기산일 변경이 판례변경인지 여부 및 위반 시 재심대상인지 여부에 대한 연구

The decision in question (The Supreme Court Jan. 13, 2011 Decided, 2009Da103950) has found that if a long period of time passed between the date of the tortious act and the end of closing argument in the court of second incidence, damages can be increased to reflect possible extenuation due to changes in circumstances at the time of the closing argument at the court of second incidence, and that this increased amount of damages can be only seen as a new claim, and therefore interest must be added from the day of the closing argument, not the day of tortious act. This diverges from earlier cases which calculated compensation for damages from the day of the tortious act (reflecting any raises and promotions or statistically significant changes in income), then determined the amount of compensation for damages by subtracting interim interest according to the present value rate, and then finally imposed legal interest from the day the tort was committed. However, such a stance taken by the decision in question is not only against earlier decisions which do not recognize the principle of changes of circumstances (clausula rebus sic stantibus) in the case of monetary claims, but also amounts to modifying earlier precedents which has held that compensation for damages must be determined considering extenuatory factors at the time of the end of closing argument at the court of second instance, then the interim interest according to present value rate must be subtracted from the amount, and finally the legal rate of interest must be imposed. Normally a change in decisions must be revised only through a Supreme Court en banc decision by the Grand Bench, but this decision was delivered by a Petty Bench. By inappropriately constituting the adjudicating court, this may be a cause for retrial. Notwithstanding the cause for retrial, the decision in question should be revised, for it is also against Articles 397, 398 and 765 of the Korean Civil Act.