미국 고용차별금지법제에서의 징벌적 손해배상의 역사와 원리

Abstract

The Civil Rights Act(1991) has introduced the compensatory and punitive damages in intentional discrimination cases. Before the Act, an individual, who suffered from employment discriminations only could file a petition for equitable reliefs in the EEOC. Because state courts, having jurisdiction over the damages claims, can’t hear cases from the Act that is enacted by the legislative power of the U.S. Congress under the federal preemption of the Constitution. The punitive damages itself, however, was not created by the Act(1991) but the damages have been recognized as a judicial relief by common law courts since the late 19th century. The punitive damages is a criminal penalty awarded by the civil procedures, which is a kind of primitive remedy from the view of the civil law system. Then, today, even the American judges would be reluctant to decide the damages in civil lawsuits. To conclude, There are doubts about whether the punitive damages would work well with the Korean legal system that has kept the remedies separating the criminal reliefs from the civil reliefs. The punitive damages is awarded by the civil procedures, but is a criminal remedy for the purpose of punishing a wrongdoer and restricting the similar unlawful actions in the future. The Korean civil laws don’t have any institutional history about the punitive damages in the civil procedures. Then, if the punitive damages are introduced on a legislation by the National Assembly, it would mean that the legislature creates totally new judicial relief for the civil lawsuit. Above all it is difficult to expect that Korean judges would properly interpret and enforce the legislation including the punitive damages, even though the legislature could succeed in enacting it.