민사소송에서 법정배액배상 조항의 심리에 관한 소고

Abstract

It has been over 10 years since the first statutory multiple damages were introduced in Korea, and this strange new scheme has been pretty popular in various fields. However, the most cases in which multiple damages are actually claimed are subcontracting cases, and there are hardly any examples in which damages have been sentenced in other fields.
 Nevertheless, bills providing excessive multiple damages have been introduced continuously because of the catharsis that the word “punitive” gives to the people.
 The biggest problem is that the current legislation has not been designed after thinking deeply about the difference between punitive damages and statutory multiple damages. Such unrefined legislation may increase the complexity in hearing statutory multiple damages cases.
 In this study, I looked at various procedural problems in the trial of the current statutory multiple damages claim, which have not been researched so far compared to studies in the substantive law areas. A claim for statutory damages with a punitive nature should be viewed as a separate subject matter of the case that is distinct from a claim for compensation that principle of disposition does not apply. In addition, it may be considered reasonable in view of the institutional purpose and public interest that it is possible for the court to compensate the multiplier ex officio or to recognize a higher multiplier beyond the multiplier requested by the parties. In particular, I suggest a two-stage test in the trial of multiple damages. In the first step, it should be determined whether a statutory multiple damages provision can be triggered by satisfying the particular statutory requirements, and in the second step, a determination of the multiplier should be made after considering statutorily given factors. In particular, since the determination of the multiplier in the second stage is a legal evaluation of the facts, it should be considered that the court can decide it on its own motion.