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Relation between non-patrimonial damage and mental anguish in korean civil law article 751 (1) - Focused on damages for immaterial harm to juristic person -

  • DONG-A LAW REVIEW
  • 2011, (51), pp.298-328
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Seo, Jong-Hee 1

1연세대학교 법학연구소

Accredited

ABSTRACT

With regard to ‘Compensation for Non-Economic Damages’, korean civil law article 751 (1) provides that “a person who has injured the person, liberty or fame of another or has inflicted any mental anguish to another person shall be liable to make compensation for damages arising therefrom”. But when it comes to analysis on ‘mental anguish’, it is necessary to be a matter of debate. That is to say, if the victim does not suffer because he is reduced to ‘the vegetative state’ or ‘juristic person’(a foundation), can we deny damages for pain and suffering?I think that we must not disclaim damages for pain and suffering to a person in a state of living death because he cannot suffer pain or experience anguish in his state. Most of the countries apply the normal measure of damages for non-pecuniary loss. That leads regularly to sums which belong to the highest awards for pain and suffering. As if comatose or other impossibility to feel the impairment is deemed to be no reason to reduce damages for immaterial harm, we must admit responsibility on tort against juristic person though he cannot suffer pain or experience anguish. If juristic person put in a claim for non-patrimonial damages, the court must calculate a reasonable estimate of the costs. But no hard and fast rules exist on the momentary assessment of non-pecuniary damage. Non-pecuniary damage is damage that cannot be measured in exact and objective, market-oriented terms of money but must be estimated. Thus, the court could refer to the assessment of ‘Schmerzensgeld’. For example, as to damages(‘Schmerzensgeld’) for pain and suffering for bodily harm, their assessment has to take into account all relevant circumstances of the case. The primary factors are the gravity and endurance of pains and the lasting consequences of injuries; but also age and personal situation of the victim, degree of fault on the part of the tortfeasor matter. And even the economic situation of the both parties or the fact that are insured plays a role. To put it in a nutshell, the victim need not have capacity to feel the impairment in order to admit ‘Compensation for Non-Economic Damages’ was authorized by korean civil law article 751 (1). Therefore, ‘Schmerzensgeld’ is also due where the victim does not suffer because he is reduced to the vegetative state. Furthermore, compensation for non-economic damages to juristic person can be admitted.

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