억지력을 중심으로 한 징벌적 손해배상제도와 집단소송제도 비교

초록

Since the introduction of the class action scheme in 「The Securities-related Class Action Act」 in January 1. 2005, no further class action has been put in place. But since the enactment of a provision for treble punitive damages under 「The Fair Transactions in Subcontracting Act」 in June 30, 2011, the same types of more punitive damages are continually accommodated in about 20 Korean laws. Furthermore the current Korean punitive damages step up quintuple damages from treble damages in the 2 out of 20 laws. Based on the belief that the ultimate goal of law enforcement should be the attainment of optimal deterrence, this paper analyzes the comparative advantages of class actions and punitive damages over other enforcement scheme including administrative and criminal enforcement mechanism and injunctive reliefs in terms of deterrence effect. More specifically, class action and punitive damages, which can be classified as private law enforcement methods, can be cost-effective and achieve higher deterrence by mainly stepping up the degree of sanction. Class action shows its strength in cases where there are a large number of victims whereas punitive damages derive increased deterrence by ratcheting up the level of sanction severity in cases where the possibility of detention lowers for the reason of impossibility or economical inefficiency. From the point of view, the current class action adopted in Korea must be revised to get rid of the deferral of litigation and expanded to cover more wrongdoing, and the current punitive damages scheme needs to increase the amount of damages up to ten times.

키워드