미국의 강력한 소비자의 권리 어디에서 오는가?

가정준(Ka Jung Joon) 한국비교사법학회 2016 比較私法 Vol.23 No.3

미국내에서 발생한 소위 ‘디젤게이트’ 사건이 처리되는 과정을 보면 미국의 소비자가 얼마나 강력한 권리를 갖고 있는지 확인할 수 있었다. 이 과정을 통해 미국의 소비자는 어떻게 그렇게 강력한 권리를 갖게 되었는지 본 논문을 통해 살펴보고자 한다. 권리는 입법과 사법활동을 통해 새롭게 형성되거나 진화되는데 미국내 소비자 권리가 어떻게 발전되었는지를 제도적 측면에서 살펴보고 이를 우리법과 비교해 본다면 시장에서 소비자들의 위상을 간접적으로 알 수 있을 것이라고 생각한다. 입법활동은 궁극적으로 시장의 저해요소들을 미리 발견하거나 예상하여 시장에서 발생하지 않도록 적극적으로 대처하도록 하는 예방적인 측면을 대부분 가지고 있다. 사법부는 시장의 기능을 저해하는 활동들인 부당거래행위, 불법행위, 독과점들이 발생하면 이로 인해 피해를 입은 피해자들이 민사소송을 통해 사후적으로 구제받도록 함으로써 시장이 작동되지 않거나 효율적이지 않아 발생하게 되는 문제점들을 사후적으로 해결하는 역할을 한다. 사업자와 관련한 소비자 문제를 해결하기 위한 정치과정은 정치과정에 대한 관심도와 참여도가 상대적으로 매우 높은 사업자로 인하여 사업자에게 유리한 정치적 결과물 또는 소비자에게 이익이 되지 못하는 정치적 결과물을 생성할 가능성이 높다는 것이다. 사업자와 소비자간 계약체결에 있어서의 ‘정보의 비대칭성’과 사업자의 불법행위로 인해 소비자에게 비계약적 손해가 발생하는 경우 손해의 배상이 완전히 이루지 못하게 되는 ‘외부성’은 일종의 시장의 실패로 정치과정을 통해 치유 · 보완되기 어렵다는 것이 바로 소비자 문제에 있어 정치과정의 한계라고 할 수 있다. 이를 치유하기 위하여 사업자의 불공정한 행위에 대하여 정치적으로 중립적인 방법으로 처리할 수 있도록 정치적 중립기구인 ‘연방공정거래위원회’를 설립하였다. 미국 민사재판에서 가해자의 불법행위를 원인으로 피해자에게 손해가 발생한 경우 다른 나라보다 정신적 고통에 대한 손해배상을 놀랍도록 크게 인정하는 이유는 그 손해배상액을 결정하는 자가 판사가 아닌 배심원이기 때문이라고 할 수 있다. 법원에서 판사는 원고와 피고사이에서 재판진행과 관련하여 중립적인 역할을 하고 ‘배심원’은 손해배상액을 결정하는 역할을 한다. 무작위로 선출된 배심원단은 정치적 관점에서 보면 미국내 정치적 소수가 아닌 정치적 다수를 대표한다고 할 수 있다. 법원에서 가해자의 불법행위책임이 인정되면 배심원은 이로 인해 발생한 손실에 대한 손해배상액을 결정하는데 마치 정치적 다수를 대표하는 소비자들이 그 손해배상액을 결정함으로써 다른 나라와 비교할 수 없는 액수의 정신적 손해배상금을 목격하게 된다. 특히 이러한 작용은 사법부가 사후적 구제 방법을 통해 불법행위를 예방하는 역할을 강력하게 하게 되었다. The laws for consumer rights and consumer protection in the U.S. provide a way for individuals to overcome the unfair or deceptive acts or practices by business. It is the most likely that the business parly takes advantage of consumer s lack of information or bargaining power to seek more profits. These laws at the federal and state level are designed to enhance consumer s rights. They are enforced by government agencies. offices of attorneys general, and through individual and class action lawsuits filed by victims. In particular. independent government agencies with the rule-making authority such as Federal Trade Commission (FTC) and Environmental Protection Agency(EPA) are established to ensure the consumer rights. Recently, one settlement with the United States and the State of California. and the other settlement with the U.S. FTC. German automaker Volkswagen AG and related entities have agreed to spend up to $14.7 billion to settle allegations of cheating emissions tests and deceiving customers. Volkswagen will pay up to $10.03 billion to compensate consumers under the program. The settlements resolve claims by the FTC that Volkswagen violated the FTC Act through the deceptive and unfair advertising and sale of ils clean diesel vehicles. In addition, Volkswagen will spend $4.7 billion to mitigate the pollution from these cars and invest in green vehicle technology. The settlements partially resolve allegations by the Environmental Protection Agency (EPA). as well as the California Attorney General s Office and the California Air Resources Board (CARB) under the Clean Air Act, California Health and Safety Code. and California s Unfair Competition Laws, relating to the vehicles use of defeat devices to cheat emissions tests. In the U.S., FTC and EPA have played a primary role in compensating the damages of consumers caused by unfair contracts. In Korea. it is unlikely that they will play their role to protect damaged consumers because of no statute to exercise their power for consumers. Since 1997, the number of businesses has sold the huge number of humidifier sterilizer in Korea. Toxic humidifier disinfectant took the lives of at least 134 people in Korea over a decade. most of whom were newborn babies. their mothers. or pregnant women. Other institution believes that more than 3,700 people have been injured and fatally injured. The businesses have been negligent in finding the risk of humidifier disinfectant that can be inhaled by their users. Some companies are even known to have intentionally ignored the fact on its product s toxicity. The damage award is relatively limited in Korean court when the injury occurs. This is because the pain and suffering damages is limited into 100 million won based on the bureaucratic internal decision among administrative judges. The damage award is huge in the U.S, court if lhe pain and suffering damages is severe. The research data says that the pain and suffering damages in the U.S. is 20 times more than one in Korea. This is because of different adjudicative process between in the U.S. and Korea. Jury trial makes huge difference in estimating the pain and suffering damages. The consumers in the U.S, are more likely to obtain legal protection than ones in other countries because of independent administrative agencies and jury trial. Independent administrative agencies plays their role to enhance the function of market. resulting in favoring consumers. The jury trial makes it more likely that the injurers are more likely to be compensated. From Diesel Gate and Poisonous Gate it is known that Korean consumers have relatively weak legal right in compensating their damages caused by unfair contract and tortious act.

변호사(辯護士) 선임계약(選任契約)의 고찰

가정준 ( Ka Jung-joon ) 한국외국어대학교 법학연구소 2005 외법논집 Vol.18 No.-

An agreement on the attorneys fee is a subject of contractual relationship between the attorney and his or her client. There are three forms of attorneys fee agreement and its classification depends on how the client pays for the legal service his or her attorney has performed. Generally, attorneys fee is classified into fixed fee, contingency fee, and modified contingency fee. In Korea, modified contingency fee is the most popular form of attorneys fee agreement and it consists of fixed fee and contingency fee. Traditionally, use of contingency fee agreement has been widely criticized because of its unethical nature, although the Korean courts have not ruled that it is a void contract itself. The basic legal aspect of attorneys contract is delegation. However, the legal aspect of attorneys contract made by the contingent fee agreement can be differently classified into undertaking contract if focusing on the accomplishment or winning of legal works. The modified contingency agreement can be classified into either delegation or undertaking contract, depending on the nature of attorneys contract. The important issue involving delegation and undertaking contract is whether the attorney has fiduciary duties in his or her contract. However, such argument is not practical because normally, most contents of the contract are already covered and particularized by the parties involved. The use of contingency fee agreement causes some problems. First of all, it has a negative impact on the traditional role of attorney. An attorney who represents his or her clients is also obliged to play a public role and it is very important for achieving social justice. Many legal scholars have been concerned with this matter while they have also emphasized the negative effects of using contingency fee. However, the contingency fee in legal service market has been commonly used and widespread under the modified contingency fee agreement. Such agreement has been made between attorney and the client without any limitation. The fixed fee agreement also causes several problems. More seriously, most of legal scholars have overlooked these problems from the fixed fee agreement. The nature of relationship between attorney and the client is not equal because of the asymmetry of information. The unequal nature of relationship is likely to render moral hazard by attorney. The problem of moral hazard is unlikely to disappear under the fixed fee agreement. A designed contract preventing moral hazard or solving the asymmetric information is likely to resolve the problems from the fixed fee agreement. The contingent fee agreement is alternative to pass away these problems. However, the nature of the contingent fee agreement has its limits to prevent them. That is why the contingent fee agreement is not allowed in criminal and domestic cases in the United States. In Korea, few legal scholars have argued both problems of fixed fee and contingent fee agreement. That causes contingent fee agreement widespread in most cases with the combination of a fixed fee. Legal scholars should reconsider the effects of attorneys fee on legal service market and clients.

DCFR의 비계약적 책임 (불법행위법)

가정준 ( Ka Jung-joon ) 한국외국어대학교 법학연구소 2009 외법논집 Vol.33 No.2

The Study Group on a European Civil Code' and 'the European Research Group on Existing EC Private Law' have cooperated to produce 'Draft Frame Reference(DCFR)'. In the beginning of this year, they published a full edition of DCFR with 10 Parts. In this DCFR, this paper focuses on Part VI, naming 'Non-Contractual Liability Arising out of Damage Caused to Another'. Its content strictly consists of tort law. Part VI consists of 7 Chapters with 57 Articles. 7 Chapters are Fundamental Provisions, Legally Relevant Damage, Accountability, Causation, Defences, Remedies, and Ancillary Rules. Part VI looks different from preexisting tort law of countries in European and including Korea. In particular, Part VI regulates initially damages based on types of losses, then types of tortious acts. This means that DCFR focuses on the damages that tort law centers in rather than the acts that criminal law does in. Also, it means that DCFR tries to be independent from criminal law that tort law has followed in legal structure. Chapter 3 shows three types of tortious acts for accountability; intention, negligence, and act without intentions or negligence. In past, strict liability was included in tort liability under the special statutes rather than Civil Code. Chapter 4 allows the injured person's predisposition in cases of personal injury or death as a causation of damages. Chapter 5 collects all kinds of defences without classifying defences like in criminal law. In particular, the provision of necessity is different from Korean Civil Code by allowing the person causing the damage to be liable for the consequences of his or her necessary act. Finally, Chapter 6 provides two alternatives of compensations for tortious damages. First, reparation is to reinstate the person suffering the legally relevant damage in the position that person would have been in had the legally relevant damage not occurred. Second, as an alternative to an ordinary way of compensation, reparation may take the form of recovery from the person accountable for the causation of the legally relevant damage of any advantage obtained by the latter in connection with causing the damage. This provision allows the flexibility of tort damages by broadening the remedy of the injured. Part VI has showed the number of newly provisions to satisfy the true aims of tort law, the prevention of potential accidents and the full compensation of actual victims. Korean tort law should take the lessons and ideas from DCFR Part V for better and efficient tort law.

정보의 비대칭과 협상력의 불균형 완화를 위한 연구

가정준 ( Ka Jung-joon ) 한국외국어대학교 법학연구소 2008 외법논집 Vol.31 No.-

The article aims to explore how the Korean Civil Code can deal with transactional problems arising from asymmetric information or/and unequal bargaining power, given that there have been few researches which examined why unfair transactions between consumer and producer occur even in a competitive market. In fact, most transactions or contracts between consumer and producer are made under conditions of asymmetric information and unequal bargaining power. Asymmetric information relates to the content of products and services while unequal bargaining power concerns the relationship between consumer and producer. They are likely to bring about unfair transactions even in relatively competitive markets and are also likely to occur where the distribution of the per capita stakes of consumer and producer are skewed. In most transactions, the per capita impact for consumers is much lower than that for producers. Low per capita impact for consumers refers to cases where there are many consumers each of whom may obtain a little benefit from the total volume of transactions. In contrast, high per capita impact for producers means that there are a few producers each of whom may obtain large benefit from the total volume of transactions. The amount of benefit that consumer and producer obtain from each transaction may not make a big difference on an individual basis. However, the aggregate impact for all of consumers and producers is about same. An individual consumer is less likely to become a repeating buyer while the producer is highly likely to become a repeating seller. The aggregate impact for consumers and producers is distributed widely and narrowly, respectively. The per capita stake of transactions for each consumer and producer is low and high, respectively, thus its distribution is skewed. Where such skewed distribution provides an advantage for concentrated producers (minority) over consumers (majority), high per capita producers take advantage of low per capita consumers due to asymmetric information and unequal bargaining power. Low per capita consumers are unlikely to have an incentive to correct asymmetric information and unequal bargaining power over high per capita producers. In contrast, high per capita producers are likely to have incentives to mislead low per capita consumers. As such, high per capita producers are likely to prefer rent-seeking activities to technological innovation. Originally, rent is an economic concept, which is related to profits rather than productivity. Rent-seeking may increase profits without improving productivity or innovation by increasing the volume of sales. Rent-seeking, however, plays a criticized role in the functioning of markets. Rent-seeking activities have been strongly criticized for their adverse effects on competition and their waste of resources. In general, a producer advertises and uses a standard form contract in order to increase the volume of transactions and decrease transaction costs. Advertising and using a standard form contract may turn out to be rent-seeking activities. Advertising differentiates similar products and equalizes different products toward low per capita consumers, who have little incentive to distinguish products and services on the market. Using a standard form contract does not make consumers negotiate their own contract. Consequently, it brings large benefits to high per capita produces, who have large incentives for decreasing transactional costs and taking advantage of consumers in contractual terms. Such unfair transactions have rarely been reviewed by courts. In other words, courts have not taken any active role under the Civil Code to intervene in unfair transactions. This is because the Civil Code is passed and translated under the assumption that all contracts are made based on freedom of contract and equal bargaining power between parties. As such, the Civil Code is not expected to take account of the unequal relationship between consumer and producer. Courts have rarely intervened in the effectiveness of contacts despite a few provisions such as Civil Code § 104, 109, and 110. These provisions are entitled to have effect on correcting asymmetric information and unequal bargaining power by invalidating a contract. This article suggests, therefore, that courts should reconsider the role of these provisions in this age of informational asymmetry and unequal relationships between consumers and producers.

현대 불법행위법의 동향과 민법상 불법행위법의 문제점

가정준 ( Jung Joon Ka ) 전북대학교 법학연구소 2010 법학연구 Vol.30 No.-

This year is the 50th anniversary that Korean Civil Code has implemented after National Assembly enacted it in 1958. Since 1999, the Ministry of Justice has tried to provide with the Draft for the Amendment of Korean Civil Code. The Ministry of Justice did not succeed to pass the Draft in 2004 due to the neglectfulness of National Assembly. The Ministry of Justice has been retrying to pass the Draft from 2009 by calling the number of legal scholars and organizing them based on their specialties. The Ministry of Justice exclaimed that this Draft is supposed to help individuals to easily realize their right in their daily life. I cannot disagree with its main idea. I just disagree with the priority which provisions are first amended. I believe that this Amendment of Korean Civil Code may aim to relieve the problems from Asymmetric Information and Externalities. This means that law for contracts and tort liability should be center for this work. However, it seems to me that the number of committees for this work focuses on contract law rather than tort law. Due to the large number of provisions on contract law, they are more likely to focus on contract law. I would like to encourage them not to overlook the part of tort law. Korean tort law may not have been independent from the principles of criminal law. Although tort law originates from criminal law, now tort liability is totally different form criminal liability. Korean civil scholars should cut off the link that the principles of tort liability depend on the principles of criminal law. European Community and Japan already provided with the Drafts for Civil Code including tort law. They are more likely to reflect to solve the problems from Externalities by expanding tort liability and shifting burden of proof. I showed them as exemplary materials to help the Amendment of tort law. Mostly, I look forward to witnessing the Draft for the Amendment of Korean Civil Code adopting new principles on tort law.

불법행위법 개편의 필요성

가정준 ( Ka Jung-joon ) 한국외국어대학교 법학연구소 2007 외법논집 Vol.27 No.-

My article is focusing on the problems of tort law and the necessity for the reorganization of tort law in Korea. Actually, I presented this article in the name of Harmonization of Tort Law under the main title of this international conference, The Globalization in the Market, The Harmonization in the Law. As the world market becomes more and more globalized, the demand of legal support for globalizing market is more necessary. Market’s Grouping and Market’s Blocks, such as ’RTA(Regional Trade Agreement)’ and ’FTA(Free Trade Agreement) are common trend in the world market. Members of WTO (World Trade Organization) are parties to one or more RTAs. 'RTA' is regional or not necessarily regional economic agreement for conditions of preferential trade liberalization. United Nations Convention on Contracts for International Sale of Goods(CISG) is a main achievement for the Harmonization of Contract Law. Most of countries have jointed this treaty to make effectuate CISG in their countries. Principles of International Commercial Contracts by Unidroit has been published to lead how CISG operates and to show how International Contract Law is supposed to be. In addition, there is strong movement to join the Harmonization of Contract Law in Europe. Even this movement has become the Harmonization of other legal areas, called drafting European Private Law. As the exchanges of goods, service, and information become larger and larger, bigger and bigger, non-contractual liability and damage also become more focused. The RTA, the globalization in the market, the huge increase in the trade of those fields correspond to contract law and tort law. The different tort liability among trade countries may cause serious trade dispute and trade conflict because the price of goods, information, and service includes the price of tort liability, so called Internalization. The examples of tort law for globalization are product liability, infringement of intellectual property (patent, copy right, trademark, trade secret), information leakage, and defamation tort. A good example of worldwide harmonization of tort law is worldwide passing 'Product Liability Act' Economists agree that tort law plays an important role to solve externalities, one of market failures. The benefits of an exchange may spill over onto other parties than those explicitly engaged in the exchange. The costs of the exchange may also spill over onto other parties. An example of an external benefit is the pollination that a beekeeper provides to his neighbor who runs an orchard. An example of an external cost is air or water pollution. The reason the market fails in the presence of external costs is that the generator of the externality does not have to pay for harming other, and so exercises too little self-restraint. American legal scholars have emphasized the role of tort law as policymaking. On the other hand, Korean legal scholars have been passive in doing this work. In order to work on it. it is necessary for them to shift the paradigm of basic tort theory. After this shift, judicial courts may follow it by playing a more active and aggressive role in cases.

DCFR의 Lease of Goods

가정준 ( Ka Jung-joon ) 한국외국어대학교 법학연구소 2010 외법논집 Vol.34 No.3

This article has focused on lease of goods in DCFR. This research is meaningful in three aspects. First, I participated in studying the enormous intellectual works by European legal scholars to uniform European private law. Second, I had opportunity to explore the part on lease of goods in contract law. It is hard to study and teach this part because most of time focusing on contracts based on sale in researches and lectures. Even facing this part, I have rather emphasized the lease of real property. Third, this academic journey may be beneficial to Korean legal scholars, studying the recodification of Korean Civil Code, by providing raw materials for law reform. This paper started by comparing lease of goods in DCFR with in UCC based on a table of contents. Book IV. Part B of DCFR describes lease of goods with seven chapters; General Provision, Lease Period, Obligations of the Lessor, Remedies of the Lessee, Obligations of the Lessee, Remedies of the Lessor, and New Parties and Sublease. The lease of goods in DCFR is formed with traditional concepts, obligations and remedies. Both a lessor and a lessee are entitled to certain rights and obligations by lease contract. Such rights and obligation are reciprocal to the lessor and lessee. The most significant chapters in lease of goods may be from chapter three to chapter six describing the obligations and remedies of the lessor and lessee. They are about the legal remedies of one party and their resources if the other party fails to perform his or her own obligation. When a lessor fails to perform the obligation of his or her own part, a lessee may claim to enforce the part of nonperformance or to compensate his or her damage, and vice versa. Therefore, two chapters must clarify what a lessor or lessee is obligated in lease contract. Chapter two describing lease period means the essential element of lease contracts in explaining what the characteristic of lease contract is. The lease contract is for one party to provide the other party with a temporary right of use of goods in exchange for rent. On the other hand, the other party has to return the right to one party when the lease contract is terminate. The period for rent is an essential element in defining lease contract. That is why lease period is located at second in whole chapter. DCFR on the lease of goods has pointed out two concepts. First, it conceptually distinguishes the lease of goods from the financial lease by who is entitled with ownership. Second, it differentiates a consumer lease from an ordinary lease depending on whether the lessor is a business or not while the lessee is a consumer.

신탁재산에 대한 수탁자와 수익자의 권리 -DCFR 신탁법상을 중심으로-

가정준 ( Ka Jung-joon ) 한국외국어대학교 법학연구소 2013 외법논집 Vol.37 No.3

This article has focused on how we understand DCFR and trusts law. This article introduces DCFR Book X and compares with Korean newly amended trust law based on American one. Main difference between DCFR and Korean trust law may come from the characteristics on the right of beneficiary although the fiduciary duties of trustee are similar to each other. The parties for creating and managing trusts are truster, trustee, and beneficiary. The truster is a person who constitutes or intends to constitute a trust by juridical act. The trustee is the person in whom the trust fund becomes or remains vested when the trust is created. The beneficiary is a person who, according to the trust terms, has either a right to benefit or eligibility for benefit from the trust fund. The trustee plays a main role to keep obligations arising from trust while the beneficiary is a main party in enjoying the trustee’s obligations. A trustee who is liable under liability of trustee to reinstate the trust fund is also obliged to compensate a beneficiary who, despite reinstatement of the trust fund, does not obtain a benefit to which that beneficiary was entitled or, if there had been no failure of performance, would have been entitled under the trust terms. In particular under DCFR, where a trustee transfers a trust asset to another and the transfer is not in accordance with the terms of the trust, the transferee takes the asset subject to the trust if the transfer is gratuitous or the transferee knows or could reasonably be expected to know that the transfer is by a trustee and is not in accordance with the terms of the trust. A transferee has a corresponding right to a return of any benefit conferred in exchange. On the other hand, in this situation, a beneficiary in Korea law is entitled to the trust asset by making the transaction between the trustee and the transferee void. I believe that DCFR considers the right of beneficiary on trust asset a proprietary right while Korean trust law does it a contractual right against a trustee. In order to protect her right on the trust asset, Korean law allows the beneficiary to avoid the transaction between the trustee and the transferee as the right to avoid by a creditor.

“CISG”상의 금전손해배상에 관한 연구-제74조를 중심으로-

가정준 ( Ka Jung-joon ) 한국외국어대학교 법학연구소 2012 외법논집 Vol.36 No.1

This paper has focused on how “CISG” art 74 work in real cases. The provision has two parts in effect. The first part is about how one party is compensated as a consequence of the breach by the other party under the contract. The goal of this provision is to place the aggrieved party in the same position it would have been in had the contract performed. Therefore, the losses of the aggrieved party might be any consequence caused by the breach of contract. The second part plays a role to limit damages under the rule of “foreseeability”. In order to analyse damages, losses are mostly classified based on their characteristics. Largely, they may be divided into “direct loss”, “incidental loss”, “consequential loss”, and “lost profits”. “Direct loss” is measured by “the difference between the value to the injured party of the performance that should have been received and the value to that party of the performance that should have been received and the value to that party of what, if anything, actually was received. “Incidental loss” can be considered additional costs in an attempt to avoid further loss. “Consequential loss” might be economic loss from dealing with third parties. On the other hand, lost profit is described by the art 74 without direct and clear definition and guideline. Above all of losses and profits are not subject to damage awards. They are awarded only after they go through a certain filter, namely foreseeability. Such damages may not exceed the loss which the aprty in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in light of the facts and matters of which he then knew or sought to have known, as a possible consequence of the breach. In addition, the civil procedure matter plays a role to limit contractual liability in measuring damages. A rule of certainty is likely to make plaintiff burdened to prove what real losses are in a certain level. In particular, it is not easy to prove what profits are that an aggrieved party has expected in making a contract. It is likely that “direct loss” and “lost profits” are foreseeable consequence from breach of contract. However, it is unlikely that plaintiff proves what profits in damages are in a certain level. It is easy to prove what “incidental loss” and “consequential loss” are in a certain leveal because they are mostly likely expenses that plaintiff already paid or used. They are mostly likely foreseeable consequence from breach of contract. Depending on proving foreseeability and certainty, kinds of losses or profits can be differently calculated as damages for the aggrieved party. In conclusion, this paper has tried to explain on detail how the art. 74 could work in real cases.

EU 통합 불법행위법 동향

가정준 ( Ka Jung-joon ) 한국외국어대학교 법학연구소 2006 외법논집 Vol.23 No.-

The two kinds of movements for the unification of tort law have proceeded in European Union. Both of them are parts for European Civil Code. European Group has developed the Principles of European Tort Law while Study Group on a European Civil Code has done the European Tort Law. European Group has been formally organized in European Union while Study Groups has been academically formed. Legal scholars in Europe participated in both groups to promote the unification of European civil law. Even American legal scholars joined European Group. The characteristics of the Principles of European Tort Law are summarized into the harmonization among members of European Unions while those of the European Tort Law are considered the neutralization among them. The Principles of European Tort Law has moved toward the achievement of unified tort law without significant discontents among EU. On the other hand, the Europe an Tort Law has aimed at being colligating and analysing all of tort law in Europe. In other words, the Principles of European Tort Law shows the reality of unified tort law while the European Tort Law does its ideality. In the point of law and economics view, tort law is supposed to serve not only the goal of compensation, but also the aim of preventing harm. However, it is likely that both of the Principles of European Tort Law and the European Tort Law has failed to achieve two goals. The main reasons of this likelihood for the failures of two goals are based on the analyses by the size of damages and the scope of tort liability. In the Principles of European Tort Law, since damages are limited to normal losses, abnormally high losses is unlikely to be compensated. Furthermore, strict liability is narrowed allowed because it only concerns abnormally dangerous activities. These two aspects shows that the Principles of European Tort Law is unlikely to attain the goals of compensation and of preventing harm. In the European Tort Law, damages are not limited only to normal losses. It has allowed the number of strict liabilities. These make it likely that the European Tort Law is better than the Principles of European Tort Law in achieving two purposes. However, it is only relative comparison. In other words, it is still doubtful how efficiently the European Tort Law contribute to the goals of compensation and of preventing harm. This is because the European Tort Law has made based on traditional tort law in Europe among only European legal scholars. Since the Principles of European Tort Law and the European Tort Law have not completed but still developed, it is early to conclude how they are in the view of law and economics analysis. However, the evaluation of both drafts of tort law in EU may suggest how tort law is supposed to be in Korea.