일반적으로 징벌적 손해배상이란, 원고의 재산상의 손해를 보전해 주기 위한 목적이 아니라 피고나 다른 비슷한 사람이 원고에게 동일한 손해를 가하는 것을 막기 위한 목적의 손해배상을 말한다.

징벌적 손해배상은 특정한 경우에만 인정되는데, 피고의 행위가 법이 허용할 수 없을 만큼 사회에 해악을 끼치는 것이거나 그 피해 정도가 극심해서 재산상 손해만으로는 보전되기 힘들 경우 등에 인정된다.

징벌적 손해배상은 피고에게 엄청난 부담을 주는 것이므로 적법절차에 따른 재판 과정이 준수되는 것을 조건으로 하여야만 인정될 수 있다.

Generally, punitive damages, are damages not awarded in order to compensate the plaintiff, but in order to reform or deter the defendant and similar persons from pursuing a course of action such as that which damaged the plaintiff.

Punitive damages are awarded only in special cases where conduct was egregiously invidious, and are over and above the amount of compensatory damages.

Great judicial restraint is expected to be exercised in their application. In the United States punitive damages awards are subject to the limitations imposed by the due process of law clauses of the Fifth and Fourteenth Amendments to the United States Constitution.(by Wikidepia)

미국 대법원이 징벌적 손해배상을 인정하려는데 주저하는 모습을 최근에 보이고 있는데 대한 비판 기사를 소개해 본다.

Fairness for the powerful

Adam Cohen The New York Times Published: October 30, 2006

NEW YORK When Jesse Williams died of lung cancer, his widow sued Philip Morris, claiming it misled him about the danger of smoking. A jury agreed, warding her $79.5 million in punitive damages. The Oregon Supreme Court affirmed the award, calling Philip Morris' decades of deception "extraordinarily reprehensible." The U.S. Supreme Court is now hearing arguments in the case, and the broader business community has joined Philip Morris in asking the court to sharply reduce the damages. They are relying on a controversial line of recent cases in which the court struck down punitive damages awards that it deemed "excessive." The Philip Morris case will tell us a lot about the John Roberts court, which may be the most pro-business court in decades. It will reveal whether the court will continue on its current disturbing path of giving corporations more protection from excessive punishment than it gives to people. The court began its punitive damages crusade in 1996, in the case of a man who sued BMW for failing to tell him that the new car he bought had been damaged and repainted. The man won $4,000 in compensatory damages and $2 million in punitive damages. The Supreme Court set aside the punitive damages award as so "grossly excessive" that it violated due process. But the court declined to lay out any clear standards for when an award was too high. In 2003, in a fraud case against State Farm Insurance by a policyholder, the court struck down $145 million in punitive damages. It held that the award was excessive since compensatory damages were only $1 million. That 145-1 ratio was unacceptable: due process generally required, the court held, a "single-digit ratio" between punitive and compensatory damages. These rulings are "activist" by all the traditional measures. They take a vaguely worded constitutional guarantee - that no one shall be deprived of property without "due process of law" - and translate it into a right that is not at all apparent from the words' plain meaning. They attempt to turn the guarantee into a precise mathematical formula. And they substitute the judges' worldview for that of elected officials. All these activist decisions relied on the votes of conservative justices who are supposedly skeptical of "judge-made" rights. The contrast with the court's decisions on punishment of human wrongdoers is stark. In 2003, the court considered the sad case of Leandro Andrade, a father of three who was given a minimum of 50 years in prison under California's tough "three strikes" sentencing law for shoplifting $153.53 worth of video tapes. The Supreme Court could find nothing excessive in the punishment. Based on the Constitution's words, Andrade certainly had a stronger case than BMW or State Farm. The Eighth Amendment expressly bars "cruel and unusual punishments," which might reasonably be interpreted to cover imprisoning a man from age 37 to 87 for stealing $153.53. The companies claimed only that the punitive damages awards violated their "due process" rights, a far greater textual stretch. Whatever the court decides in the current case, it should develop a constitutional theory of excessive punishment that covers human and corporate wrongdoers equally, as some legal experts have urged. The current doctrines make no sense. Conservatives like to talk about the "framers' intent." The framers were deeply concerned about excessive punishment, and set forth their views on it in the Eighth Amendment. They would be perplexed that the high court they created believes their Constitution permits a father to remain in jail for 50 years for petty theft, but does not tolerate taking a fraction of the wealth from a company that kills people. Adam Cohen is a member of the New York Times editorial board.