미국법상 금지명령 제도

• 영문명: Injunction in American Tort Law
• 발행기관: 한국민사법학회
• 저자명: 김태선(Kim, Tae Sun)
• 간행물 정보: 『민사법학』제61호, 473~504쪽, 전체 32쪽
• 주제분류: 사회과학 > 사회과학일반
• 파일형태: PDF
• 발행일자: 2012.12.31

영문 초록

In recent months, the Civil Law Reformation Committee of the Ministry of Justice drafted the amendment of the Tort Law in Korea. The draft includes a remedy of injunction against torts and its requirements and is stated in the following: The right to prevention exists in so far as compensation would not be an adequate remedy and it is reasonable for the person who would be liable for the causation of the damage to prevent it from occurring. This article, supporting the broad offering injunctive relief to remedy tort, studies the Injunction in American Tort Law and tries to seek its implication for Korea. To be entitled to permanent injunctive relief in American Tort Law, a plaintiff must establish that a future harm is irreparable and that the hardship brought to the defendant by compliance is not disproportionate to the benefit to the plaintiff after compliance. The requirement that harm be irreparable has been softening in many cases, stated in terms of the relative adequacy of injunction. The relative hardship likely to result to the defendant if an injunction is granted and to the plaintiff if it is denied is one of the factors to be considered in determining the appropriateness of injunction against tort. Restatement (second) of torts points out that by hypothesis, the defendant is the wrongdoer. Care must be taken that the needs of the deserving plaintiff are not too easily overbalanced by the hardship that an injunction would bring upon the defendant. Examining the foregoing statement, the article suggests the following: The inadequacy of damages requirement in the recent draft should not be posed in absolute terms but in comparative terms for ascertaining the relative adequacy of injunction against the damages. It should not be the law that an injunction be refused unless other remedies are inadequate in the sense of being wholly unserviceable or worthless. Injunction should bring more ordinary relief to remedy tort in Korea.

목차

Ⅰ. 시작하며

Ⅱ. 미국의 금지명령 법리 - 손해의 회복불가능성과 이익형량을 중심으로

Ⅲ. 미국 금지명령 법리의 시사점

Ⅳ. 마치며

참고문헌

키워드

불법행위 금지명령 형평법 구제수단 손해배상 곤란성의 형량 torts injunction equity remedy damages balancing hardships