징벌적 손해배상의 활성화를 위한 검토 - 하도급법을 중심으로 -

Violation of the Fair Subcontract Transactions Act constitutes the so-called invisible legal violation. And the existing public sanctions such as corrective orders and fines have already faced the limitation of inefficiency. As a way to overcome these, punitive damages was introduced to the Subcontract Act in 2011 as a private restriction. However, unlike the original purpose, the scheme has been hardly utilized practically. Subcontract transactional relationships are invited contract in the civil code. Thus, public sanctions against them could rather weaken smaller firms’ competitiveness, etc. And the corrective measure-prepositive principle was abolished and damage claim scheme has been activated. Against this background, it seems desirable to provide private means such as civil lawsuit for transaction participating parties to request remedies for themselves. Punitive damages scheme, in this situation, would need to be further activated. Given the characteristics of subcontract transactions it can be assumed that even if the punitive damages is recognized, whose damage amount exceeds that of the compensatory damages by 3 times, not any excessive compensation would be resulted. In this sense, it is deemed desirable in stimulating the punitive damages to introduce the discretionary punitive damages (including the flexible upper limit method) to open up the possibility of recognizing a considerable damage amount in some cases for subcontractors to file a punitive damage suit even at the cost of their transaction severance, etc.