상법 개정안의 징벌적 손해배상제도에 관한 소고

In Korea, where compensation is a general form of damages, the punitive damage system has recently been introduced as an individual legislative method and is being legislated competitively in specific fields. The Ministry of Justice has proposed special provisions for merchants' liability for damages in the Amendment to the Commercial Act. By uniformly regulating the punitive damage system introduced in the form of the current individual law, it was intended to give the commercial law general legal status regarding punitive damage and to enhance its effectiveness. In this paper, after examining the characteristics of the current individual legislative methods, the legislative problems of the commercial act amendments are reviewed, and the matters that must be preceded for the effective settlement of the punitive damage as a general clause were considered. The current individually legislated punitive damages system has the following characteristics. (1) introduction focused on the field of unfair trade practices, (2) the introduction of individual legislative methods, (3) introduction of discretionary triple punitive damages, (4) relaxation of the requirements for recognition compared to punitive damages under the common law. The review of the amendment to the Commercial Act is as follows. (1) As an exception to punitive damages, it is necessary to strengthen the subjective requirements, but it can be considered that some justification has been secured only with intention or gross negligence. (2) The uniform 5 times upper limit of the amendment to the Commercial Act is somewhat higher than the previous one (increased from three to five), but the previous problems still exist, so additional review of legislation is needed. (3) As it is a special case for merchants' commercial activities, the issue of punitive damages caused by general private individuals is still not resolved, and it seems that this problem can be solved by introducing it into the Civil Code. At the same time, If the class action law is passed, punitive damages would also be more effective.