불법행위에 있어서의 손익상계-상계의 대상이 되는 이익에 대한 재검토를 겸하여

Traditionally, the principle of offsetting damages by benefits incurred (compensatio lucri cum damno) has been used in calculating the amount of damages incurred by tort. Under this principle, benefits to be offset are construed as having incurred by the same cause that caused damages in tort cases. Judicial precedents have applied the proximate cause theory as the underlying basis for determining damages caused by tort and offsetting benefits incurred by the same cause. Yet, there lies difficulty in predicting whether damages caused by tort are offset by benefits incurred due to the broad limitation on the benefits to be offset. As a matter of course, benefits incurred by a victim should be offset in the process of computing the amount of actual damages incurred by tort. However, said benefits should not be offset when determining the same solely on the ground that the victim incurred benefits caused by tort. In other words, only under extenuating circumstances, benefits incurred by tort may be “taken into consideration” when adjusting the amount of damages. That said, compensatio lucri cum damno should be regarded as an exception rather than a principle. This paper aims to: (i) point out the limitations of the proximate cause theory, which is a requirement for offsetting damages by benefits received; (ii) examine the concept of compensatio lucri cum damno and its justification basis; (iii) understand the applicable scope of the same; (iv) propose “fairness” and “reasonableness” as substitute elements to determine whether there exists “proximate cause” when offsetting damages by benefits incurred; and (v) analyze relevant theories and judicial precedents.