慰藉料에 관한 硏究

Abstract

This thesis is for studying legal issues with regard to interpreting "consolation money's that is to be named compensation not for damage on property but for spiritual damage. What is so called, damages of which legal theory has been discussed and developed is generally applied to no more than damage on property. Contrary to this, compensation for spiritual damage, so called Itconsolation moneys has been far from our interests as spiritual damage is unaccountable and so difficult to liquidate. Had legal ground for consolation money been admittedly effective in some particular cases since Roman law, it was not until after 19th century that whether to stipulate compensation for spiritual damage or not in positive law appeared as a legal issue. Today, legal issues on consolation money are occasionally arisen, but those have not been dealt little, which is the reason why I try to make up this thesis. In the first place, substance of consolation money and how to calculate it are reviewed through comparative law approach, comparing positive legal systems of France, Germany, Switzeland, including AngloAmerican common law world. Next the main part of this thesis deals with three principal suujects concerning consolation money. Firstly, it was pursued to clarify the substance and legal character of consolation money with reviewing foreign legal systems. Secondly principles of calculating liquidation of spiritual damage are dealt with on the ground of the proposition that the amount of consolation money can be decided by the judicial court on it's own wills referring to the all-around environments of the two controversial parties in case of spiritual injuries. Lastly, stipm, Uations in the ordar. Civil Code concerning consolation money are reviowo d both on the "Law of proporty and on the family Law. Noticeably, it is asserted that consol.ation money can be based on the injuries to property as well as on the spiritual damages. In order to realize the purposes of consolation, money system, all the related stipulations in the present positive law are researched widely. In conclusion, consolation money on account of spiritual damage is less cared than damages on account of injuries to property, in spite of the fact that the former is not less important than the latter, so there should be an emphasis to secure consolation money owing to spiritual damage justly and completelye As a matter of fact, consolation money decided by the judicial court has not been equivalent and equitable to spiritual damage. What is to be furthermore mentioned, in case of divorce not only the husband should pay alimony to his wife, but also each of divor&ee should share property of theirs equally.