earticle

영어

The primary function of the torts law of Korea is aimed to compensate the actual damages inflicted on the plaintiff by the defendant's tortious conduct. In order to recover his or her damages, the plaintiff must prove that the damages was caused by the defendant's tortious conduct. Also the amount of actual damages must be proven in a specific amount by a showing of evidence. However, this is a tricky inquiry because, in some cases, the exact damages is hard to measure. To overcome the difficulty, statutory damages have been proposed as an alternative way by some critics because it may be imposed by the court without any proof of actual damages. According to KORUS FTA, Korea should introduce statutorily fixed damage awards with respect to copyright and trademark infringement. The purpose of statutory damages is to compensate the copyright owner for lost profits and unascertainable actual damages, and also to deter future infringements. However, under the Korean law, the plaintiff is only able to recover his or her actual damages. The imposition of damage awards to punish unlawful conduct and deter future infringements has never been allowed. Therefore, the introduction of statutory damages can basically cause some conflicts with the traditional remedy rule of Korea. In addition, the punitive portion of a statutory damage award can sometimes imposes an unconstitutional grossly excessive penalty. In particular, when a given punishment is massively aggregated across many similar instances of misconduct, the resulting penalty can become so large that it becomes grossly excessive in relation to any legitimate interest in punishment and deterrence. Therefore, in implementing statutory damages in the copyright law of Korea, it should carefully consider that the amount of statutory damages must not be grossly excessive in relation to those goals. In this regard, this article proposed new provisions as followed; the copyright owner may elect, at any time before a trial court's judgment is rendered, to recover an award of statutory damages for all infringements involved in the action, with respect to any one work, in a sum of not less than 300,000 Won or more than 30,000,000 Won as the court considers just. In a case of where the court finds that the result of infringement is grave, the court in its discretion may increase the award of statutory damages to a sum of not more than 100,000,000 Won, and In a case of where the court finds that statutory damages are grossly excessive, the court may decrease the award of statutory damages, regardless of the above minimum award.