징벌배상제의 상법 도입방안에 대한 평가와 논박

Punitive damages are monetary compensation inflicted by civil procedures for the purpose of punishment and deterrence to a person who has committed malicious tort, and is based on the tradition of common law in Anglo-American. In the spirit of equitable distribution of damages, punitive compensation in the Continental Legal System's civil compensation law system has been extremely passive in its introduction, except for exceptional legislation such as China. In Korea, there have been a lot of controversies over the introduction of a punitive damages system, considering that the existing compensatory system alone is insufficient in retribution and deterrence of malicious torts and victims. In the meantime, individual special laws have placed punitive damages clauses as they have taken a prudent position on the full introduction of this system. Then, for the unified enforcement of the punitive damages system, a number of legislative proposals enacting a special law on this and a Civil Law amendment with a punitive damages clause were made. There have been pros and cons among Civil Law scholars regarding the placement of punitive compensation clauses in the Civil Law, and there were still no conclusions on this. Meanwhile, in September 2020, the Ministry of Justice announced a legislative amendment to the Commercial Act that introduces punitive damages clauses into the General Provisions of the Korean Commercial Act (§66-2). This Article is critically reviewing the above amendment to the Commercial Law of the Ministry of Justice. As the starting point of the discussion, this Article basically opposes the adoption of the punitive damages in general, and it takes the position that the method of introducing punitive damages clauses into the Commercial Law is more inappropriate approach than the method of placing punitive damages clauses in the Civil Law. This study focuses on the issue of introducing it into the Commercial Law while building on many results of existing research on punitive damages. To this end, a comparative legislation review regarding punitive damages, and a review of the effectiveness of the bill as well as legal theory are being conducted. (1) From the comparative legislation research it is pointed out that even countries that operate punitive damages have limited application of this system, and in their actual application, they do not achieve the expected results and appear to decline. (2) Legally, this Article examines the problems that arise when the punishment compensation system is applied to merchants, focusing on the nature of the Commercial Law, the phenomenon of economic activities, the problem of discrimination between non-merchants and merchants, the possibility of disturbing the basis of the compensation liability system of the Commercial Law, and the issue of unconstitutionality. (3) Regarding the actual legislative effect, it is pointed out that it will be difficult to obtain the functions of deterrence for malicious illegal acts pursued by the punitive damages system. Rather, it can confuse the basis of the damage compensation system based on compensatory damages, and cause various social costs and side effects.