불법행위에 대한 금지청구권의 요건 - 제2차 불법행위법 리스테이트먼트상 적합성 판단 요소를 중심으로 -

In recent years, the remedy of injunction against torts and its requirements have been increasingly subject of debate among legal scholars in South Korea because the compensation afforded by damages has been often found to be unsatisfactory, and injunction could be the more adequate remedy in some tort cases. An injunction is a remedy in the form of an in personam order and directs the defendant to act, or to refrain from acting in a specific way. It seeks to accomplish its goals by coercing defendant’s behavior, which could be a greater intrusion on defendant’s liberty and affect innocent third parties with orders directed to violators. Given the effect of injunctive relief against torts, ‘the relationship between damages and injunction,’ ‘balancing the conflicting interests of parties,’ and ‘consideration of the interests of identifiable third persons and of the public’ should be included in the discussion on determining to grant or refuse an injunction in torts cases. This article examines factors in determining appropriateness of injunction in the Restatement (Second) of Torts, and provides implications for scholarly debate in this area in South Korea.