비재산적 손해의 배상과 위자료 = Special Issues : Damages for Non-pecuniary Loss and Consolation money(Schmerzensgeld)

다국어 초록 (Multilingual Abstract)

With regard to ``Compensation for Non-Economic Damages``, korean civil law article 751 (1) provides that a person who has injured the person, liberty or fame of another or has inflicted any mental anguish to another person shall be liable to make compensation for damages arising therefrom. First, korean civil law article 751 (1)``Compensation for Non-Economic Damages`` must be understood under korean civil law article 750(Definition of Torts). Therefore, it must satisfy the general reguirements of torts to be admit ``Compensation for Non-Economic Damages``. Second, when it comes to analysis on ``mental anguish``, it is necessary to be a matter of debate. That is to say, if the victim does not suffer because he is reduced to ``the vegetative state`` or ``juristic person``(a foundation), can we deny damages for pain and suffering? To put it in a nutshell, victim who has not capacity to feel the impairment was authorized by korean civil law article 751 (1). Therefore, we must not disclaim damages for pain and suffering to a person in a state of living death because he cannot suffer pain or experience anguish in his state. Third, if victims put in a claim for non-patrimonial damages, the court must calculate a reasonable estimate of the costs and maintain limit of ``real cost`` in award damages for non-pecuniary loss. But no hard and fast rules exist on the momentary assessment of non-pecuniary damage. Non-pecuniary damage is damage that cannot be measured in exact and objective, market-oriented terms of money but must be estimated. Therefore, deterrence function play much important role in damages for non-pecuniary loss than in damages for pecuniary loss. Perhaps, that`s the reason why the court takes into account all relevant circumstances of the case. The primary factors are the gravity and endurance of pains and the lasting consequences of injuries; but also age and personal situation of the victim, degree of fault on the part of the tortfeasor matter. And even the economic situation of the both parties or the fact that are insured plays a role. Finally, the complementary function of consolation money(Schmerznsgeld) which makes up for ``pecuniary lost`` in case of extremely difficult or impossible momentary assessment of pecuniary damage must be limited in scope.