미국 계약법상 손해배상의 범위

• 영문명: The Scope of Damage Award in American Contract Law
• 발행기관: 한국민사법학회
• 저자명: 박영복(Young-Bok Park) 가정준(Jung-joon Ka)
• 간행물 정보: 『민사법학』제35호, 377~417쪽, 전체 41쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2007.03.31

영문 초록

This article has attempted to explore the methods for damage award that can be used in Korean contract law. In order to achieve this purpose, first of all, this article has mainly focused on the damages remedy in American contract law. Unlike in Korean law, monetary remedy is principally preferred to non-monetary one in American law. American contract law has widely developed the legal methods to measure loss for monetary remedy in details. Through this research, this article may provide new sources for monetary remedy in Korean contract law. In the United States, court can make the damage award or restitution in money for an injured party under contracts. The damage award is measured by the non-breaching party s loss while restitution is measured by the breaching party s unjust gain. In other words, the damage award aims to compensate for the injured party while restitution aims to prevent the injuring party from obtaining unjust enrichment. This article has especially explored the damage award. American contract law has solved many difficulties how to calculate damages for breach of contract. First, courts attempt to put the non-breaching party in the position he would have been in had the contract been performed. In this attempt, courts give him damage award as “the benefit of his bargain , including any profits he would have made from the contract. This is a situation to protect his “expectation interest. Second, courts attempt to put the non-breaching party in as good a position as he was in before the contract was made. In this attempt, courts award him his “out-of-pocket costs incurred in the performance he has already rendered. This is a situation to protect his “reliance interest. In general, “the expectation interest of non-breaching party is equal to the value of the breaching party s promised performance called “contract price minus the “benefits , if any, that the non-breaching party received from not having to complete his own performance. Where expectation damages are not appropriate in calculating damages, courts may make the damage award based on “reliance damages. In fact, it is hard to figure out the expectation damages because of the uncertainty of lost profits. Therefore, the court may award the non-breaching party compensation for expenditures he made in preparing and making the performance of the contract. A case of Sullivan v. O Conor has exactly showed what “reliance damage is and how it is calculated. In Korea, “reliance damages may not a common method to calculate the damages of non-breaching party in the breach of contract. Rather, it has been used in non-contract situations where contract is cancelled or becomes void. Recently, Korean Supreme Court has allowed the damage award for the non-breaching party based on “reliance damage in contract situation. However, this has been such a debatable subject among Korean legal scholars because of the weak theoretical support. This research of the damage award in American contract law may help to dwindle this debate in Korean contract law.

목차

Ⅰ. 연구의 대상으로서의 미국 계약법

Ⅱ. 미국법상 손해배상책임의 체계

Ⅲ. ‘기대이익’의 배상

Ⅳ. ‘신뢰이익’의 배상

Ⅴ. 분석적 시각에서의 미국 계약법상의 보호이익

Ⅵ. 우리법에의 시사

키워드

손해배상 손해배상의 범위 기대이익 신뢰이익 원상회복이익 회피가능성 예견가능성 확실성의 원칙 expectation interest reliance interest restitutional interest damage award monetary remedy loss