징벌적 손해배상액의 산정기준- 소비자보호 등 개별법 분야에서의 징벌배상제 도입가능성을 전제로 -

In South Korea, punitive damages have been increasingly subject of debate among legislators, lawyers, and academics. In recent years, there seems to have been a growing consensus on the introduction of punitive damages in specific legal areas, including consumer protection and product liability. However, we still have some important issues to consider before we will adopt them. This article intends to identify them based on the U.S. experience, and from a functional perspective, specifically assess standards for awards of punitive damages that have been criticized by commentators in the United States and South Korea. In the United States, punitive damages gained an expanded role in consumer protection during the initial decades of the twentieth century. However, as the number of punitive damage verdicts and judgments increased during the latter half of the twentieth century, particularly in products liability litigation, such awards became a central part of the tort reform movement due to the threat of multiple or excessive punitive damages. In the process, many courts and state legislatures adopted a variety of laws reforming punitive damages in various ways. Various methods or criteria that can be used either separately or collectively to calculating punitive damages have been introduced in South Korea. Considering the critical functions of punitive damages that punish defendants and deter them or others like them from similar conduct in the future, two factors - the seriousness of an infraction and the economic condition of the defendant – seem to rank highest. On the other hand, two other factors – the use of multiples of compensatory damages and the imposition of statutory caps – rate substantially lower in their ability to meet the goal of punitive damages. However, it should be noted that this analytical result of the factors would be different depending on policy ends that we want to achieve through punitive damages.