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영어

In comparison with a provisions about the law of tort, there is no provision in Korean Civil Law about a compensation for mental damages(ideeller Schaden) caused by a default on an obligation.
There are many opinions to solve this problem. A major opinion permits a compensation for mental damages caused by default. Because there are no provisions like §253 of BGB, we can permit a compensation for mental damages regardless of a default or an illegal act. And whoever a creditor of default or a injured by an illegal act have a right to compensation for the mental damages.
An opposite opinion denies a compensation for mental damages caused by a default. Because, we can ignore the intention of the legislator by permitting a compensation for mental damages caused by a default in spite of no provision. And, because Korean Civil Law divides the law of contract and the law of illegal act, we cannot be regarded in the same light.
A judicial precedent regards a compensation for mental damages caused by a default as a supplementary function.
It is right to deny a compensation for mental damages caused by a default at present. But, we have to protect a right of mental damaged creditor. Therefore it is formed to permitting a compensation for mental damages caused by a default.
Recently Korean Civil Law is revised. But, it seems that there are almost no considerations on a compensation for mental damages caused by a default.
It is very important to rule certainly to the nation in statutory formed law. We do not cause a legal unrest by owing to a defect in legislation. Therefore, it is needed to form a new provisions about a compensation for mental damages caused by a default.