손해배상제도의 목적과 손해의 개념에 관한 연구

Abstract

Among the various issues regarding the damage remedy system, the purpose and concept of the damage are the most fundamental ones that suggest a direction for how we should look at the damage in specific cases. Above all, regarding the purpose of the damage remedy system, the original one was the corrective justice, but in the contemporary welfare society, the distributive justice is being more and more emphasized. Our Civil Code pursues a fair and valid sharing of damage, which implies that the code accepts both corrective and distributive justices.
 Regarding the concept of damage, the Roman law did not clearly distinguish the contractual damage from the that of tort, but established the concept that the damage would involve violation and gain, and such concept would form the basis of the Medieval law and would also form the background of the damage in the contemporary civil laws. This study would review the concepts of the damage in German and French civil codes and then, discuss their concept in the US Tort. Specifically, this study examines the core disputes regarding the concept of the damage to better understand the core discussions of such concepts related with the concept of the damage as differential amount theory, normative concept of damage and foreseeability in an effort to make clear the discussions regarding the scope of the damage in Article 393 of our Civil Code. In particular, domestic majority of theories and judicial precedents adopt the Proximate casual relation theory as a criterion for decision on the scope of the damage, but Article 393 itself should function as criteria for decision on the scope of the damage. Hence, as the Paragraph 2 of Article 393 stipulates, it is judged that the foreseeability shall be the criteria for decision on the special damage, and that beside the principles of interest balancing and the foreseeability, other specific validity such as purpose of the norm should be considered for a fair distribution of the damage.