중국법상 위약금 직권 감액에 관한 고찰 - 한국법의 논의를 포함하여 -

Abstract

China does not distinguish between liquidated damages and penalties in its Civil Code and related judicial interpretations. The legal framework allows for the judicial reduction of agreed payments for breach of contract. The reduction of liquidated damages is based on the principles of fairness, good faith, contractual balance, and the rectification of unfair terms. If the agreed payment for breach of contract is deemed excessively high, the court may reduce the amount upon the request of the parties involved. However, while the court possesses the discretion to reduce the payment, it is not required to do so. Under Chinese law, the judicial reduction of liquidated damages is specifically outlined as follows: First, the reduction of liquidated damages is initiated upon the debtor’s request. Second, the determination of whether the liquidated damages are excessively high is based on the actual losses suffered. The scope of such losses includes both actual damages and lost profits. Third, liquidated damages are generally considered excessively high if they exceed 30% of the actual losses. However, this 30% threshold should not be applied mechanically. Instead, courts must make a judgment based on the principles of fairness and good faith, taking into account factors such as the parties involved, the type of transaction, the extent of contractual performance, and the degree of fault of the parties. More specifically, the judicial reduction of liquidated damages is reasonably recognized only in contracts where both parties are civil entities. In contrast, due to the nature of commercial contracts, it is generally inappropriate to allow for the reduction of agreed liquidated damages, as the parties to such contracts are typically presumed to have carefully negotiated and anticipated the terms. In addition, particular caution must be exercised when reducing liquidated damages in high-risk, high-return transactions. In such cases, the parties are not only fully aware of the risks involved, but the agreed liquidated damages are also likely to align with the anticipated returns. Moreover, when a contract has been partially performed, and the creditor has gained a certain benefit from that performance, a reduction in the liquidated damages may be justified. Finally, if a party breaches the contract in bad faith, the judicial reduction of liquidated damages should generally not apply. A comparative analysis of Korean and Chinese law regarding liquidated damages reveals several key insights: First, the most significant difference between the two legal systems is that Korean law lacks explicit provisions governing liquidated damages. Instead, it differentiates between liquidated damages and penalties, treating the reduction of each category differently. In Korea, courts have the authority to reduce liquidated damages if they are deemed excessive; however, the reduction of penalties is strictly limited by public policy. Despite this distinction, both liquidated damages and penalties involve judicial intervention in private autonomy, raising questions about the justification of this differentiation and the legal theories that underpin it. The necessity and legitimacy of reducing damages should not vary between liquidated damages and penalties; in fact, the rationale for reduction is often stronger in the case of penalties. Therefore, from a legislative perspective, it would be preferable to integrate liquidated damages and penalties under a unified framework and establish general provisions regarding liquidated damages. Additionally, similar to Chinese law, it is advisable to permit for the increase of liquidated damages when they are unreasonably low. This approach would provide a legislative basis for addressing such issues, thereby promoting fairness in contracts. The principle of equity should apply not only when liquidated damages are excessive but also when they are insufficient, ensuring consistency in the law. Furthermore, it is appropriate to adhere to Chinese law, which stipulates that any adjustment of liquidated damages—whether an increase or decrease—must be initiated by the request of the concerned party. When the liquidated damages are unreasonably high, a reduction should only occur upon the debtor’s request, in accordance with the principle of private autonomy. Current regulations in Korea may create the impression that courts can unilaterally reduce liquidated damages, potentially undermining the parties’ autonomy. Therefore, it is essential to clarify the role of the party requesting the reduction to address this incomplete expression in the law.