미국법상 순수재산손해의 법리

Youngjoon Kwon, Associate Professor, School of Law, Seoul National University

In general, pure economic loss is understood as economic loss without antecedent harm to plaintiff’s person or property. In a number of countries such as England, the United States, and Germany, the compensation for pure economic loss is denied in principle. The purpose of this paper is to examine the pure economic loss doctrine as discussed in the United States. This doctrine has evolved in the realm of negligence law in the 19th century with liberalism as its philosophical background. The United States Supreme Court decision on Robins Dry Dock & Repair Co. v. Flint in 1927 has served as a milestone decision in the development of this doctrine. On the whole, most of the courts in the U.S. still adhere to this doctrine, thereby denying compensation for pure economic loss in principle. The prevention of endless liability, the contract primacy and the efficiency rationale are presented as the justification grounds. However, there are certain decisions that mitigate the rigidity of this doctrine by allowing exceptions in professional liability cases or oil-spill cases. As of 2011, the American Law Institute is proceeding with restating this doctrine and now has come up with the first preliminary draft on the first chapter of the restatement. The pure economic doctrine as is understood in the United States is not directly applicable to Korea where tort law regime is totally different. The underlying rationales, at least from a Korean perspective, are not fully convincing either. However, its keen awareness of the relationship between the protected interest and the tortious liability, as well as its theoretical framework that explicitly focuses on the positioning of the tort law as opposed to other areas of law such as contract law or insurance law, have meaningful implications on Korean law.