위약벌과 손해배상액 예정의 구별 기준에 관한 간단한 고찰 - 대법원 2016. 7. 14. 선고 2012다65973 판결의 검토를 중심으로 -

초록

This article is a note to the recent decision of the Supreme Court(Supreme Court Decision 2012Da65873 decided July 14. 2017.) which deals with the distinction between liquidated damages clause and penalty clause. In this case, the matters on the nature of the clause that was supposed to pay penalty without compensation for the damages and the possibility of reducing the amount are discussed. The first trial and the appellate court found that the clause is a penalty clause and rejected the reduction of the amount, considering the circumstances of the transaction, even though separate compensation for damages is not possible. However, the Supreme Court judged the parties' intentions based on the fact that no separate compensation could be made, and considered the clause as the liquidated damages clause, and acknowledged the possibility of a reduction in the amount pursuant to Article 398 paragraph 2 of the Korean Civil Code. As a result, the amount of compensation for damages was reduced to 60 percent of the promised amount. It is seemed that in the base of this decision there must be logic that the amount of penalty is difficult to reduce though it is easy to reduce when the amount is deemed as the liquidated damage. In fact recent Supreme Court decisions tend to regard various forms of clause as a liquidated damages clause for easy reductions. Based on the court's attitude, it is understood that the parties to this case contract are stipulated as penalty to reduce the possibility of a reduction. In fact, the possibility of separate compensation for damages is understood to be one of the actual factors to distinguish the liquidated damages from penalty, so that the conclusion of the Supreme Court is quite persuasive. But considering the concrete facts it is difficult to completely agree with the conclusion of Supreme Court in this case. The first is whether the court can deny the intention of an effect as a penalty, even though the parties clearly intends to do so. According to existing precedents, the judgment should be made by compiling various factors, so that as seen in the lower court the clause has to be seen as a penalty clause. Secondly, it is the question of whether the amount is unfairly high and requires a reduction. The clause is established with negotiations on a number of other clauses. And the amount in that clause is only 5 percent of the total contract amount. It is seemed that this judgment made too much room for follow-up intervention. Such an attitude is feared to bring uncertainty to the position of dealing with actual affairs based on the attitude of the Supreme Court.

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