미국 불법행위법상 비재산적 손해의 배상과 그 한계

The Compensability of Non-pecuniary Loss and It s Limits in American Tort Law

When does American tort law compensate non-pecuniary loss? In this article, those cases rendered by American courts, in which damages for non-pecuniary loss were awarded, are classified into four categories - direct and independent harm cases, direct and parasite harm cases, indirect harm cases (loss of consortium and parasite harm), and infringement of constitutional right cases, and the schemes or tests for the compensability of non-pecuniary loss in each category are analyzed in turn. The main findings are as follows: American tort law recognizes different types of non-pecuniary losses, that is dignitary harm as a normative loss, pain and suffering as a physical and factual loss, and pure emotional harm as a non-physical and factual loss; the scope of compensable non-pecuniary loss depends on the cause of action or type of tortious act; more strict requirements should be met for the so-called parasite non-pecuniary damages; the nature of loss of consortium is confusing in American tort law as well as in other jurisdictions; no damages are presumed for the infringement of constitutional rights.