채무불이행으로 인한 위자료에 관한 비교법적 연구

This study aims to review continental law, anglo-american law and international model law and to suggest interpretations on contractual damages for non-pecuniary loss under Korean Civil Code (hierafter. KCC). After comparative review the following conclusions have been drawn. First, contractual damages for non-pecuniary loss are available under KCC art. 393. Secondly, damages for the ordinary feelings of anxiety, frustration and disappointment caused by any breach of contract are unavailable because they are so commonly a consequence of a breach of contract that the parties must be regarded as having agreed to take the risk of its occurrence by way of policy. Damages for pecuniary loss restore the plaintiff's satisfaction, and the intervening vexation is disregarded. Thirdly, whether non-pecuniary loss is general damage or special damage depends on the important object of the contract. if the important object of the contract is commercial one, contractual damages of non-pecuniary loss are recoverable under special damage rule. if the important object of the contract is non-commercial one, contractual damages of non-pecuniary loss are recoverable under general damage rule. Fourthly, only substantial non-pecuniary loss is available to damages. substantiality of non-pecuniary loss depends on the related interests, the object of the contract, fault, the adequacy of damages for pecuniary loss and so on. Fifthly, even if breach of contract is accompanied by willful or intentional conduct, damages for non-pecuniary loss are recoverable under substantiality rule.