주관적 가치보상에 대한 연구 - 미국의 사례를 중심으로 -

A basic rule in remedies is that the remedy should return the injured party, as nearly as possible, to the position he occupied prior to his injury. But law and equity come to very different conclusions about what remedy is sufficient to restore a plaintiff to his status quo ante when real property, rare property, and property with high sentimental but low market value are involved. Equity treats the loss of these items as irreparable injury, meaning that damages are not adequate to compensate the victim for their loss. But if the real property is seized in eminent domain proceedings, or rare or sentimental personal property is destroyed, the market value of these items is generally deemed at law to provide an adequate measure of the value of the loss, so that giving the plaintiff market value damages constitutes an adequate remedy at law. This demonstrates a fundamental tension between law and equity: Law presumes that the market value is the measure of the damages suffered from the loss, but equity presumes that the damages from this same loss are immeasurable; were it otherwise, damages would be adequate, and equity jurisdiction would not be invoked. But where real property is taken in eminent domain proceedings, or where invaluable property is lost or destroyed through the wrongful act of another, plaintiffs cannot avail themselves of the equity rule, which entitles them to the return of their property. Courts should therefore go further in granting damages so that plaintiffs will be returned as much as possible to the position they occupied before their losses. In eminent domain proceedings, courts should award damages sufficient to allow the plaintiff to purchase a piece of land that will approximate the use to which they had put their seized property, and grant consequential damages for the costs of purchasing that property, even if it creates the risk of a windfall for the plaintiff. In cases of personal property, courts should follow tort law's example and grant damages that attempt to reflect, albeit imperfectly, the sentimental damages that plaintiffs suffer when they lose their ability to enjoy their property through the wrongful act of another. Whether by judicial, statutory, or constitutional design, We should revise the way courts calculate just compensation so that perhaps one day an individual whose home is taken by eminent domain can at least say that the compensation received was just.