유류오염 사고에서의 정신적 손해 배상 － 대법원 2004.4.28. 선고, 2001다36733판결 평석 － (원심: 서울고법 2001. 5. 8. 선고, 99나14633 판결)

The Korean Supreme Court held that mental distress can be compensated based on Korean Civil Law as lex fori because Oil Pollution Damage Compensation Guarantee Act(‘the Act') does not provide for the scope of compensation. The Admissibility of claims for mental damage under the Act depends on which rule between the Civil Law and the compensation guidelines of IOPC Fund is applied to the matter of determining the scope of oil pollution damage. Finally, This problem is related to whether the compensation guidelines of IOPC Fund are legally binding as the sources of international law or not. Considering that the resolutions or decisions of the Fund does not get any legal confidence yet, domestic courts will not recognize legal effects of them. Therefore mental damage can be compensated under the Act, because Civil Law is applicable to the assessment of oil pollution damage. The other problematic issue is to recognize the complementary function of Consolation Money. Although the Supreme Court has rejected the plaintiff's claim without any definite reference, the possibility to use the complementary function as a lawsuit skill will be increased at oil pollution incident in the future, given that a system for fishery income has not been established in Korea. But I think that it is not desirable to overuse the complementary function for alleviating or avoiding the burden to prove property damage.