不法行爲에 기한 慰藉料에 대한 小考

초록

This paper aims to dispute the following themas. ① the heads of non-pecuniary loss, ② the meaning and function of damages for non-pecuniary loss, ③ the conditions of entitlement as to damages for non-pecuniary loss, ④ the unconscious victim's entitlement to damages for non-pecuniary loss. after comparative analysis, I have drawn the following conclusions. first, non-pecuniary loss is defined as an attack on one's physical integrity which has no effect on one's patrimony and is usually broken down into 'pain and suffering' and ‘loss of amenity(the injury itself and its impact on the plaintiff's enjoyment of life)’. unconscious victim is entitle to substantial damages for non-pecuniary loss(loss of amenity). secondly, the meaning of damages for non-pecuniary loss is to provide solace for the real hurt suffered by the victim of a tort, to affirm human dignity and to confirm that personal capacities and mental equilibrium affect the quality of our life as human beings. thirdly, deterrence play much important role in damages for non-pecuniary loss than in damages for pecuniary loss because the conduct can increase the grievance of the victim. but judge should maintain limit of 'real cost' in award damages for non-pecuniary loss. because the law of tort is not to prevention and punish but to compensate, and deterence and punishment is the only side effects. fourthly, in order to embrace every type of torts, we need flexile rule. so korean civil code art. 750 should be applied to cases that is not embraced by korean civil code artt. 751-752.

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