대륙법에서 징벌적 손해배상 논의- 민법의 관점에서 -

Traditionally punitive damages have been awarded in the legal system,which the Common Law Countries have adopted with their historic background and traditions. In this regard, the arguable damages may not go with the Civil Law system. However, recently several Civil Law Countries have discussed whether or not the punitive damages may be accepted in their legal systems. Further a small number of Civil Law Countries, such as France and China have adopted punitive damages for their societies. In Korea, there have been arguments over whether or not the punitive damages have been necessary in her legal system: such as, if the damages are accepted, they must be enacted in the Korean Civil Code as a general provision, or the punitive damages may be introduced in specific statutes. In the meanwhile, the punitive damages were adopted in the Korean Fair Transactions in Subcontracting Act in September 2012. In this aspect, this author attempts to examine how the punitive damages of the Common Law System may work for the Korean Legal System, which has had the civil law tradition. This article has four parts. First, it discusses that how the American punitive damages, which have played a central role in a modern society among the Common Law Countries, have worked in American society. Second, it examines why Civil Law Countries have attempted to adopt the punitive damages and how they have tried to legalize the punitive damages, which have been recognized as a Common Law institute. Third, it studies the punitive damages in the Korean Fair Transactions in Subcontracting Act and discussions of the controversial punitive damages in Korean society. Finally while summarizing the pros and cons of punitive damages, this author attempts to propose that punitive damages would be mainly substituted by non-economic damages in Korean legal system.