판례상 책임제한의 의미와 정당화

The amount of damages calculated by each claims is finally accounted on the process of damages adjustment by application of fault offset rule, benefits rule. The process aims at the fair apportionment of damage as an ideal of damages. In the cases of no fault and no benefits, the compensation of total losses of victims often contradicts the dominant legal sentiment or sense of justice. If the amount of damages exceeds the wrong-doer’s fault, it should be reduced by judges on the basis of damages adjustment in the light of fair and just sharing of losses. It corresponds with the idea of corrective justice on which law of damages should be based. The above solution is the so-called limitation of liability in precedents. But the reduction of damages through limitation of liability sometimes infringes on the legal security in connection with the controversy surrounding law making by judges. So, the so-called limitation of liability in precedents requires justification. Justice or equity as an ideal of law in general including law of damages can be its ideological foundation. The paper tries to define and justify the so-called limitation of liability as the third adjustment of damages resulted from torts. It focuses on the corrective justice and distributive justice, and equity for the purpose of justification of damages reduction. Besides, it points out the limits of the so-called limitation of liability in precedents as an example of law making by judges.