징벌적 손해배상 개념의 수용가능성

Abstract

Under contemporary torts, compensatory damages is not a sufficient remedy for the victim. The punitive damages is the necessary policy measure to improve the problems of current circumstances against torts. The purpose of punitive damages is to punish the wrongdoer and to deter that person and others from similar tort in the future. Therefore the punitive damages may not be suitable for our legal system and practice. If the damages from illegal conduct are confined to the victim's losses, the inherent deterrent effect of compensatory damages may be sufficient. However, when illegal conduct gives rise to profits that are greater than the damages incurred by the victim, a purely compensatory system of damages will fail to provide adequate deterrence. German law has had and still has a difficulty of openly accepting punitive damages as part of its legal system. But since the necessity of accepting punitive damages has increased, punitive damages have been applied to such broad areas that they can be considered exceptional. Certain areas such as infringement of the right of personality and employment discrimination based on gender cases are frequently governed by the notion of deterrence, which results in damages that are not purely compensatory. The noncompensatory and punitive elements of German law on damages is increasing. The introduction of the concept of punitive damages may be difficult in our civil law system, but this issue must be resolved through legislation of punitive damages in certain areas.

Under contemporary torts, compensatory damages is not a sufficient remedy for the victim. The punitive damages is the necessary policy measure to improve the problems of current circumstances against torts. The purpose of punitive damages is to punish the wrongdoer and to deter that person and others from similar tort in the future. Therefore the punitive damages may not be suitable for our legal system and practice. If the damages from illegal conduct are confined to the victim's losses, the inherent deterrent effect of compensatory damages may be sufficient. However, when illegal conduct gives rise to profits that are greater than the damages incurred by the victim, a purely compensatory system of damages will fail to provide adequate deterrence. German law has had and still has a difficulty of openly accepting punitive damages as part of its legal system. But since the necessity of accepting punitive damages has increased, punitive damages have been applied to such broad areas that they can be considered exceptional. Certain areas such as infringement of the right of personality and employment discrimination based on gender cases are frequently governed by the notion of deterrence, which results in damages that are not purely compensatory. The noncompensatory and punitive elements of German law on damages is increasing. The introduction of the concept of punitive damages may be difficult in our civil law system, but this issue must be resolved through legislation of punitive damages in certain areas.