기업의 불법행위 규제 수단으로서의 징벌적 손해배상제도 : 손해배상제도의 비교법적 연구를 중심으로

국문 초록 (Abstract)

현대 산업사회는 기업에 의해 주도되고, 기업을 통하여 발전해 나간다. 이러한 산
업발전의 원동력은 이윤창출이라는 기업의 목표에서 기인한다. 이윤추구라는 목적
달성을 향한 기업의 목표 의식은 우리의 물질문명과 삶을 더욱 풍요롭게 이끌어 나
간다.
그러나 기업의 과도한 이윤추구 활동은 불법행위라는 심각한 부작용을 야기하기도
한다. 기업의 불법행위에 의한 피해는 제조물 피해, 환경오염, 인권침해, 생명의 침
해 등의 형태로 나타나며, 기술발전과 산업발전이 진전될수록 더욱 예측하기 힘든
다양한 형태의 피해를 유발한다. ‘가습기 살균제’ 사건이나, ‘세월호 침몰’, ‘삼풍 백
화점 붕괴’ 등을 통해 기업의 불법행위가 우리 사회에 얼마나 큰 상흔을 남길 수
있는지 우리는 혹독한 경험을 통하여 확인하였다. 또한 이러한 피해는 국내기업에
국한되지 않고, ‘폭스바겐 배기량 조작사태’, ‘bmw 차량 화재’, ‘옥시의 가습기 살균
제 판매’ 등의 사건으로 글로벌 기업에 의해서도 우리 국민의 생명과 안전이 침해
될 수 있음을 확인하였다.
기업의 불법행위는 사회 전체의 공익을 저해할 수 있기에, 이를 규율할 수 있는
제도적 안전장치는 반드시 필요하다. 그러므로 현행 법제도가 기업의 불법행위에
대하여 적절한 억제력과 피해구제 능력을 갖추고 있는지에 대한 점검이 필요하다.
기업의 불법행위를 규제할 수 있는 장치는 형법상의 처벌, 행정법상의 규제, 민법
상의 손해보상제도 등 다양한 법률적 제도로써 마련되어 있다. 그러나 현행법상의
제도는 모두 사후(事後)적 규제라는 한계를 갖는다.
기업의 불법행위에 의한 피해는 매우 광범위한 영역에서 다량의 피해자를 발생시
키고, 회복과 보상에는 상당한 시간과 자원이 필요하기에, 기업의 불법행위는 제도
적 규율을 통해 사전에 예방되는 것이 가장 중요하다.
이에 대한 제도적 대안으로 제시할 수 있는 것이 바로 징벌적 손해배상제도이다.
징벌적 손해배상제도는 우리 법체계와는 상이한 영미법계의 제도로써, 손해의 원상
을 회복하는 우리의 손해배상제도와는 달리, 장래 발생할 수 있는 불법행위를 억제
하고, 제재하기 위하여 손해의 전보에 더하여 강력한 배상금액을 부가적으로 배상
하게 하는 제도이다. 이러한 징벌적 손해배상제도는 배액배상제도의 형태로 우리
법제에 수용되었다. 그러나 배액배상제도는 본래적 의미의 징벌적 손해배상제도에
서 매우 완화된 형태의 수용으로 평가받고 있다.
배액배상제도의 도입으로 보다 폭넓은 영역에서 기업을 규제할 수 있는 제도적 역
할을 수행할 것이라 기대할 수 있지만, 일부의 영역에 도입된 개별법상의 규정만으
로 다양한 형태로 발생하는 기업의 불법행위를 모두 규제할 수 있을지, 통상 3배
이하로 제한된 손해배상액으로 기업의 불법행위를 충분히 억제할 수 있을 만큼의
제재력을 발휘할지 의문이다.
징벌적 손해배상제도가 우리 법제도하에서 불법행위를 제지하고, 억제하기 위한
제도적 역할을 충실히 수행하기 위해서는 징벌적 손해배상제도에 대한 지속적인 연
구가 이루어져야 하며, 보다 완성도 높은 입법과 제도개혁을 통해, 제도의 완결성을
갖추어야 할 것이다.

다국어 초록 (Multilingual Abstract)

Modern industrial society is led and developed by enterprises. The driving
force behind these industrial developments stems from the company’s goal of
generating profits. Profit-maximization by corporations enriches our materialistic
societal values and lifestyles.
However, excessive profit-seeking activities by corporations consequentially
cause violations of the law. Damages from aforementioned organizational
wrongdoings include defects in manufacturing, environmental pollution, human
rights and life violations, and diverse forms of unpredictable damages as
technological and industrial developments progress over time. The negative
impact on society of such corporate illegalities are showcased through infamous
domestic events like ‘Humidifier Disinfectant Disaster’, ‘Sinking of Sewol Ferry’,
and ‘Collapse of Sampoong Department Store’. Plus, incidents by global entities
like ‘Volkswagen’s Diesel Scandal’, ‘BMW Car Fires’, and ‘Oxy’s Humidifier
Disinfectant Sales’ have further proved that the infringement to the lives and
safety of the Korean people are not limited to domestic activities.
Such corporate violations of the law undermine the general public interest as a
whole, making institutional stability and regulations mandatory. Capabilities of
the current legislation system must be assessed and proper deterrence and
damage relief against the violations are necessary.
Various legal devices such as punishment under criminal law, regulations under
administrative law, and compensation for damages and loss under civil law are
in place to regulate corporate illegalities; yet ex post regulations limit all of the
above under the current legal code.
Systematic prevention is of utmost importance in controlling corporate
violations as the caused damage affects a large number of victims across a
wide spectrum and the resulting compensations require considerable time and
resources.
Punitive damages is the institutional alternative in addressing the said issue.
Punitive damages are a settled principle from the common law that differs from
our legal system of restoring to original state; it also requires additional
compensation in regards to deterring and reforming others from engaging in
similar illegal conducts. In our legislation, this principle is accepted in a form of
multiple damages. However, multiple damages is considered a relaxed form of
punitive damages.
While it is expected that the introduction of multiple damages plays a larger
legal role in governing corporations on broader parameters, it is questionable
whether partially introduced individual laws are able to regulate all types of
corporate violations of the law as well as exert sufficient sanction power with
the limit of treble damages.
I n order for punitive damages to faithfully carry out its role in deterring and
suppressing corporate illegalities under our legal system, continuous research on
the topic must be conducted and the principle must be completed through
legislation and institutional reformations.

목차 (Table of Contents)

• 제 1장 서 론 ···························································································································································1
• 제 1절 문제 제기와 연구의 목적 ·······························································································································1
• 제 2절 연구의 내용과 범위 ······································································································································2
• 제 3절 연구의 방법 및 한계 ·····································································································································4
• 제 2장 현행법상 손해배상제도와 징벌적 손해배상제도 ······························································································6
• 제 1절 손해의 개념과 손해배상 원리 ························································································································6
• Ⅰ. 손해(損害)의 개념 ·············································································································································6
• Ⅱ. 손해배상의 원리 ················································································································································6
• 제 2절 전보적 손해배상과 배액배상제도 ···················································································································7
• Ⅰ. 전보적 손해배상 ················································································································································7
• Ⅱ. 배액배상제도 ····················································································································································8
• 제 3절 징벌적 손해배상의 연혁과 발전 ···················································································································10
• Ⅰ. 고대 법체계의 징벌적 손해배상의 원리 ··············································································································10
• Ⅱ. 주요 국가별 징벌적 손해배상제도의 연혁 및 현황 ·······························································································11
• 제 4절 징벌적 손해배상제도의 개념과 기능 ············································································································21
• Ⅰ. 징벌적 손해배상의 개념 ···································································································································21
• Ⅱ. 징벌적 손해배상제도의 인정요건 ······················································································································21
• Ⅲ. 징벌적 손해배상제도의 기능 ····························································································································24
• Ⅳ. 배상액의 산정 ·················································································································································26
• 제 3장 기업의 불법행위 사례와 보상의 법리 비교 ····································································································27
• 제 1절 기업의 불법행위에 의한 피해사례와 국내 법률상의 보상법리 ·········································································27
• Ⅰ. 기업 제조물의 의한 피해 ··································································································································27
• Ⅱ. 기업에 의한 환경피해 ······································································································································32
• Ⅲ. 기업에 의한 노동자 인권 및 생명권 침해 ············································································································37
• Ⅳ. 언론 기업에 의한 인격권 침해 및 사회 혼란 위험성 ·····························································································42
• 제 2절 기업의 자발적 불법행위 억제 수단으로서의 기업의 사회적 책임(CSR)···························································· 48
• Ⅰ. 기업의 사회적 책임(CSR)의 개념 ······················································································································48
• Ⅱ. 기업의 사회적 책임(CSR)의 기업 불법행위 억제 실효성 평가 ··············································································49
• 제 4장 징벌적 손해배상제도에 대한 입법평가 및 발전 제언 ······················································································52
• 제 1절 징벌적 손해배상제도 수용의 한계 요건 ········································································································52
• Ⅰ. 법체계의 차이점 ··············································································································································52
• Ⅱ. 헌법상의 쟁점 ·················································································································································54
• Ⅲ. 제도악용과 남소 가능성 ···································································································································56
• 제 2절 기업의 불법행위 제재 수단으로 징벌적 손해배상제도 수용 근거 및 제도 강화 방법론 ·······································56
• Ⅰ. 법체계의 연성화(軟性化) ·································································································································57
• Ⅱ. 헌법상의 쟁점에 관한 수용 제언 ·······················································································································64
• Ⅲ. 제도악용 및 남소 가능성에 대한 제언 ················································································································66
• 제 5장 결론 ··························································································································································68
• ABSTRACT ·························································································································································71
• 참 고 문 헌 ···························································································································································73
• 부 록Ⅰ ································································································································································78
• 부 록Ⅱ ································································································································································83