불법행위법상 금지청구권에 관한 소고

Article 750 of the Korean Civil Act recognizes only compensation for damages as remedies for torts. The provision of Article 750 is premised on the assumption that damages have occurred as a result of an act of infringement, and thus injunctions against torts are not recognized as prior remedies for acts of infringement. The existing common opinion regarding whether to recognize injunctions against torts is that the suspension or injunction of currently on-going torts does not arise directly from the effects of torts. The reason is that the system regarding torts compensates for the damages that have already occurred as a result of torts. However, recently, a new opinion is emerging that injunctions should be recognized as to the infringement on operating profits and bonds, besides the infringement of absolute rights including real rights and personal rights. In addition, some are raising an opinion that injunctions against torts can be recognized by inferring the premise, although there are no specific provisions that recognize injunctions. Korean judicial precedents show that injunctions are recognized only for the infringement of absolute rights. However, injunctions can also be recognized as to the infringement of personal rights and environmental rights, although there are no related provisions in law. This is made possible by making an inference based on the provisions on real rights claim for ownership, etc. and applying such provisions. Past judicial precedents did not recognize injunctions as to the infringement on operating profits. However, recent rulings by the Supreme Court recognize injunctions, although there is no infringement of absolute rights including real rights. It can be said that the essential and fundamental function of the tort system is about compensation of damages. However, tort laws have not only a function of damage compensation, but a function of damage prevention through the suppression of torts. The purposes of tort laws (compensation and prevention of damages) are eventually related with what is a desirable means of remedies for torts. And this leads to injunctions against torts in terms of damage prevention. There are occasions when damage has occurred and a compensation for the damage is insufficient to restore the state before the tort was committed. In such occasions, the recognition of injunction against torts would address the defects that compensation for damages has as a posterior remedy in terms of protecting victims. In the Korean Civil Act, if a tort is established, compensation for damages follows as an effect thereof. Such a posterior compensation for damages has a limitation in suppressing torts in advance. Consequently, when damage cannot be recovered in any way as in personal rights infringement or a continuous tort, it will be necessary to suppress torts themselves in advance for securing the effectiveness of tort laws. To that end, it will be necessary to recognize the right to injunction.