定期金 賠償에 관한 小考

Problems of Rent Payment for Damages

Korean civil code provides that damages for emotional shock could be awarded as a rent. However, the general rule is that damages are awarded as lump sum whether they are for emotional shock or not. Rent payment has been used scarcely by the lawyers and courts. But scholars and some judges agree that the rent payment needs to be used more often. The author’s view is not different from these lawyers in principle. But the author points out there are some major problems to be worked out before we march on that path. First, what is more adaptable damages? The case law says there are three different type of damages: damages for actual loss(damnum emergens), damages for future loss(lucrum cessans), and damages for emotional shock. The author argues that future loss includes not only future actual loss(e.g. loss for future medical treatment), or future loss of earning, but also future emotional shock. These are suitable damages for rent payment because these losses happen in the future. Second, could the court award the rent payment without the request of the plaintiff(usually the victim)? Although some cases say yes to this question, the author claims that even if the rent payment is more advantageous that the lump sum, the decision should be left to the plaintiff, not the court except some extreme cases.