징벌적 손해배상액 또는 법정손해배상액에 관한 제도 도입 논의에 있어 절차법적 쟁점

Possible adoption of punitive damages is explored in some specific area such as antitrust law, product liability law. Unlike antitrust law, environmental law, or product liability law, statutory damages system is discussed in terms of intellectual property law. Definitely, punitive damages or statutory damages will affect business of Korean companies. In this regard, we need to research both regimes. Article 18.10.6 of KORUS FTA, which was disclosed and posted on July 2nd, 2007 on Korean government homepages including Ministry of Foreign Affairs and Trade, prescribes that “In civil judicial proceedings, each Party shall, at least with respect to works, phonograms, and performances protected by copyright or related rights, and in cases of trademark counterfeiting, establish or maintain pre-established damages, which shall be available on the election of the right holder. Pre-established damages shall be in an amount sufficient to constitute a deterrent to future infringements and to compensate fully the right holder for the harm caused by the infringement.” Hence we need to adopt statutory damages system in Copyright Act, Computer Program Protection Act, and Trademark Act in Korea, subject to the definition and ambit of damages stipulated in Korean Civil Act, because the mere compliance with the KORUS FTA is not consistent with damages regime in Korean Civil Act. Article 125bis of Proposed Korean Copyright Act Bill, followed by the KORUS FTA, states that the infringed can select to seek actual damages or statutory damages when the actual damages caused by the infringer can hardly be proved and that the maximum of the statutory damages is 10 million Korean Won per a copyrighted work without its minimum. According to the said provision, its maximum can be raised to 50 millionKorean Won per a copyrighted work when the infringem연구논문ent is willful and done for the infringer's benefit. According to the proposed amendment to Korean Trademark Act, section 66bis adopts the definition of a counterfeit of a mark or designation act counterfeits trademark and section 67bis provides statutory damages as a remedy for its counterfeit. The representative country in which punitive damages and statutory damages are available for litigators is America. Hence, this Article aims at scrutinizing the punitive damages and statutory damages system in America. A plenty of legal literature in Korea deals with punitive damages or statutory damages in terms of substantive law, so that it can make the Article focus on the procedural issues of punitive damages or statutory damages. Also, as far as statutory damages is concerned, the Article will explore only copyright-related field because the ambit of just an article makes me narrow down its focus. For this reason, at the outset, the Article will deal with the procedural issues related to punitive damages, by explaining (i) its purpose and history, (ii) its availability, (iii) its statement in a plaintiff's complaint, (iv) prohibition of ad damnum clause, (v) bar on argument based on punitive damages at the early stage of litigation, (vi) evidentiary limitation on punitive damages, (vii) delay of discovery on a corporation's asset or financial situation, (viii) bifurcation of proceedings, (ix) heightened burden of proof, (x) jury instruction on punitive damages, (xi) limitation on jury verdict, (xii) review followed by jury verdict on excessive punitive damages. Afterwards, the Article will discuss American copyright law and delineate (i) its purpose and history, (ii) registration as a condition precedent to statutory damages, and (iii) statutory damages for multiple infringements. Finally, the Article will propose how the Korean legal community adopts the American-styled punitive damages or statutory damages from the proceduralist's viewpoint.