懲罰的損害賠償의 機能과 限界 = Efficiency and Deterrence in the Law of punitive damages

다국어 초록 (Multilingual Abstract)

In Korea, the Civil Law has no statutes providing generally for "punitive damages" awards in tort cases. The purposes of this article are focused on the reception of the punitive damages.
The doctrine of punitive damages, with deep roots in ancient law, was first received by the English common law 1763. The punitive damages was rapidly transported to USA and by the middle of the 19 C. had gained substantial acceptance in this country.
Since punitive damages are assessed for punishment and not for reparation, a positive element of consious wrongdoing is always required. It must be shown either that the defendant was actuated by ill will, malice or evil motive, which may appear by direct evidence of such motive, or from the inherent character of the tort itself, or from the oppressive character of his conduct.
Few commentators today challenge the appropriateness of including a punitive damages claim in actions based on negligence or fraud and deceit, even in the area of products liability the litigation. But "Strict liability and punitive damages", it is asserted, "will not mix". In strict liability the character of the defendant's act is of no consequence; in the punitive damages claim based upon allegations of aggravated fault is logically incompatible with a strict products liability action in which the manufacturer's care is not relevant to the determination of liability for compensatory damages. But punitive damages awards habe been held appropriate in a number or cases involving various other causes of action based on strict principles of liability.
There are difficulties in measuring and controlling punitive damages awards in all tort cases. It is suggested to determine a proper amount for such damages in consideration of the character of the defendant's act, nature and extent of the harm to the plaintiff. Insurance coverage of punitive damages assessments should be prohibited as contrary to public policy.