하도급 입법의 과제 - 징벌적 손해배상의 확대 문제를 중심으로 -

After the launch of the present government, the government expanded the scope of treble damages in Fair Transactions in Subcontracting Act (hereinafter the “Subcontracting Act”) from misappropriation of technical documents to unfair reduction of supply prices, unfair order cancellations and unfair return of supplied goods, in order to tackle the “unfairness in transactions” caused by the corporates abusing their superior position. A fierce controversy was aroused over the inclusion of punitive damages, which is based on Anglo-American law and entirely different from the traditional compensatory damages, but the legislator made a decision to introduce punitive damages as a methodology to resolve the dispute over the “Gab-Eul” relations, in which “Gab” being the dominant contractor, and “Eul” being the subcontractor. The inclusion of treble damages in Korea is welcome, but it will be required from this time on to ensure treble damages to operate properly by recognizing that punitive damages may entail excessive restriction on and prevention for the illegal act, which could lead to discouraging socially helpful activities such as entrepreneurial actions, and thus efforts should be taken to minimize such side effects. Therefore, it would be necessary to analyze the treble damages in the Subcontracting Act, focusing on the issues such as excessive punishment on a defendant along with excessive relief on a plaintiff, reinforcement of the requirements, the burden of proof, and abuse of process. Firstly, the issue of excessive punishment can be raised in the Subcontracting Act. Article 25-3 (1) 3 states that, a penalty surcharge within the extent not exceeding double the price for a subcontract can be imposed separately on a principal contractor for the violation to which the treble damages can be applied, and Article 30 (1) 1 again states that a fine not exceeding the amount equivalent to double the price for a subcontract can be additionally imposed. This means that a principal contractor could be subject to civil and criminal liabilities at the same time for one illegal act, which poses a risk of excessive punishment. However, the amended Act shows an effort to address the risk with legislative means, by stating in Article 35 (3) 4 that the court shall consider the penalty and fine for the violation when deciding the amount of damages. Moreover, given that the aim of punitive damages includes providing sufficient compensation for a plaintiff as well as controlling the violation of a principal contractor, it cannot be seen that the double imposition of fine and penalty in terms of criminal and administrative charge respectively violates the principle against double jeopardy incorporated in the Constitution. Secondly, while the Subcontracting Act seems to tackle excessive relief on a plaintiff by limiting the amount of the punitive damages to treble damages, there are remaining problems of calculating the actual damages that serve as a base of treble damages, and of deciding whether the treble damages will be sufficient. These issues should be considered in a flexible manner by each case. Thirdly, though the need for strict and thorough review on both the occurrence and scope of the damages is apparent when introducing punitive damages, the current Subcontracting Act allowed punitive damages for slight negligence as well as gross negligence, let alone strengthening the requirements. Therefore, it is needed to reinforce the requirements in the rules related to the Act. Fourthly, while the level of proof should be higher in punitive damages so that the damages are confirmed by clear and definite proof, the Subcontracting Act shifts the burden of proof to the principal contractors in order that they prove the non-existence of their own intent or negligence. This seems to have reflected the concern that the purpose of the Act could be neglected if the burden of proof is on a subcontractor where the dominance of a principal contractor is evident in a transaction. However, given overall consideration that the practical difficulty lies in proving the scope of the damages rather than proving the existence of the intent or negligence related to the occurrence of the damages, and the current Act provides an enumerated clause with regard to deciding whether the action amounts to a violation so that the intent and negligence could be practically assumed only by proving the existence of a violating action, it may be asked whether the clause for shifting the burden of proof was truly necessary. Lastly, given that not a single suit for punitive damages was filed since the treble damages for misappropriation of technical documents was introduced in 2011, the problem of abuse of process is not to be concerned yet. Now is rather the time for bridging the massive gap between the law and reality to ensure the effective application of the Subcontracting act in actual transactions. As the Subcontracting Act reflects the strong will of the legislator to regulate the present unfair order in subcontracting and establish an equal relationship between the parties, the Act harbors great risks of transitional trial-and-error problems. The related rules should be gradually polished along with further observation on how the punitive damages introduced achieve harmony with the situations of our society.