손해배상법상 이득금지의 원칙과 의제적 손해산정 - 독일 연방대법원 판례 변경(BGH, Urteil v. 22. 2. 2018 - Ⅶ ZR 46/17)에 대한 일고찰 -

Recently, the German civil law circle discussed whether the scope of the damage compensation could be determined through a constructive damage calculation (fiktive Schadensberechnung) in the case where the sub-contractor should compensate the damage instead of repairing the defect according to his warranty liability. In 2018, the 7th Civil Affairs Department of the German Federation Supreme Court changed the precedent to defy the constructive calculation of the damages instead of the sub-contractor’s warranty liability. Opinions conflict regarding the application of such changed precedent to the calculation of the damage in terms of seller’s defect liability. The main reason for the change of the supreme court precedent is that an excess compensation for the constructive damage is feared. Namely, if the defect itself should be regarded as a damage regardless of the specific expenses, the scope of the damage compensation might be excessive. In other words, if the contractor perceives that the cost not paid for the repair of the defect is a damage, the actual perception of the damage might be misleading. Nevertheless, it is also doubted that the scope of the damage compensation could be fairly determined in substitution for the actual expense incurred. Since a damage should be estimated based on the actual loss, diverse factors of judgment may well be considered for the equivalence between damage and compensation. Furthermore, such argument is relevant to the principle of the unjust enrichment prevention in the Damage Compensation Law (schadensrechtliches Bereicherungsverbot). Hence, this study reviews the change of the precedent of the German Federation Supreme Court critically, and thereupon, attempts to specify ‘the actual cost of remedy’ affecting the scope of the damage compensation instead of the defect repairing.