권리 구제 방법에 대한 검토

Abstract

Remedies give meaning to obligations by enforcing substantive Rights. Select of adequate remedy is important to effectively realize the rights. Remedies can be characterized by their function or by their form. The legal system gives very different answers on the problem of the adequacy of remedies. Primary remedy for breach of contract is specific performance, the aggrieved party is entitled to require performance of a obligation. It is based on the effect of the Rights. A claim for performance is the normal sanction in Germany and Korea, but specific performance is regarded as exceptional in the Common Law. But the distance is not as great as might appear. The right to special performance is irrelevant to the right to damages. The most common remedy is damages compensating for harm. The plaintiff may ordinarily follow the claim for damages because of the inefficiency and inconvenience of specific performance. But measuring damages isn't always easy. The injunction is an order from a court directing to do or to refrain from doing some specific thing. Injunctions can forbid conduct and order defendant to do something. A specific performance is a specialized form of injunction. It usually requires affirmative conduct coercing the defendant's behavior. Injunction are sometimes classified as being mandatory or prohibitory. In many situations the two kinds of injunctions are different in form, but not in purpose or effect. A classifications for injunction may be more meaningful ; as reparative or preventive. The reparative injunction requires the defendant to restore the plaintiff to a preexisting entitlement, A preventive injunction attempts to prevent the harm in the future. The reparative injunction does not literally undo the past violation; rather it prevents some of the harm from that violation. Damages authorizes plaintiff to seize defendant's property, an injunction seek to coerce defendant's behavior. The injunction may be a greater intrusion on defendant's liberty. But inadequate remedy for the loss of something irreparable injury justified the use of Injunction - an interest in the performance which cannot well be translated into money terms. The irrepairable injury rule does not solve the difficulties of issuing injunction. Also Undue hardship to defendant may be an independent reason for denying specific relief. The measure of injunction is preventing harm in spite of their scope. The injunction against future violation to prevent harm rather than compensate for harm already suffered. Judge can not only enjoin future violation but also ameliorate the harm of past violation. The point of injunction is to gets how much injunction for the effectiveness of the discontinuance. Before issuing of an injunction there must be a ripe threat of injury. But it may not require a showing of actual harm. What is important is that the harm will accrue in the future.