상표법상 법정손해배상제도의 위상정립과 입법론적 과제

Statutory damage system is not familiar with us, those who have been accustomed to the principle of recovery of an actual lost profits. In order to settle down this statutory damage system into our damage recovery systems under trademark law, it is required to identify its legal status properly. Identification for the characteristic legal status of statutory damage may give a great impact on the operation issues such as the scope for application or interpretation for the requirements of claiming statutory damages. There will also be the effect on the direction of operations and of improving the system in the future as well as on the management of other provisions relating to damages. In this regard, this paper is firstly to review its legal character and status by reviewing other countries’ historical background of corresponding rules and regulations including USA and China. Furthermore, this paper checks the legal status of our statutory damage systems under trademark law by comparing with other statutory damage systems introduced in such Acts as Copyright Act, Use and Protection of Credit Information Act, Act on the Promotion of Information and Communications Network Utilization and Information Protection and by comparing with different other damage regulations within the Trademark Act, especially for the damage calculation regulation by means of comparisons with the status of discretion in order to establish properly our own regimes on statutory damage systems. Finally, this paper suggests some points that statutory damages should direct for the more effective way of operation by an analysis of the essence of the system as in the United States. Also, this paper is willing to suggest a legislative issues for considering legislation necessity in the future for compatible with other legal systems or faithful to the nature of statutory damage systems.