징벌적 손해배상제도에 대한 고찰

A Study on Punitive Damages : Introducing punitive damages into Korean Law

Punitive Damages have long been the subject of debate in Korea. It is a warm controversial legal issue not only in Korea, but also in the countries where punitive damages is already a part of law. Despite conservative opinion, many authors have expressed the opinion that punitive damages should be introduced into Korean law. This paper reviews and analyzes the recent debate on punitive damages, a number of objections to the concept, their proponents arguments, and the drafts of new civil code which incorporates punitive damages. In conclusion, the answer of this paper is not affirmative to the question whether the introduction of punitive damages into Korean law will be a efficient way to improve Korean civil law system. The main benefit to be expected from the introduction of punitive damages into Korea law, according to their proponent, is that this would enhance three function of civil liability; redress for plaintiff, deterrence and punishment. It would seem logical that an award of punitive damages would achieve the purpose, to redress plaintiff s injures, when they do not seem to be fully redressed by an award of merely compensatory damages. Nonetheless, the punitive damages would not be a general way to achieve this purpose, because they are awarded quite rarely, in special cases. The cases on United States and England show that punitive damages are awarded infrequently, predictably, and not in large amount. One American research has shown that the vast majority of awards for punitive damages cluster, in which the ration roughly 1:1 - that is, the most significant factor of punitive damages amounts is the compensatory award. It makes the rationale of punitive damages, deterrence, weak, because a potential tortfeasor can correctly weight the costs of the wrongdoing. It is necessary to overcome the problem of “rational apathy , this means that the victim might find it too expensive to bring a suits against the tortfeasor, when comparing the costs to the expected outcome of the trial. This problem might occur especially in situations where the losses are scattered over many victims. This paper, however, presents improving civil proceeding for the victims to bring a suits against tortfeasor more easily would be a better way to overcome this problem, rather than introducing punitive damages into Korean law. Reforming class action acts and regulations of attorney fee in Korea would be an example as improvements.