損害賠償豫定額이 不當히 過多한 경우의 職權 減額 및 그 判斷의 基準時點에 관한 一考察

Abstract

This study is on liquidated damages and reduction of amount by official authority in Korean Civil Law. According to a leading case, it is that in a real estate sale transaction case in which a buyer made a breach of contract, but the seller resold it to the 3rd party so successfully that the seller recovered more than he lost, the Korean Supreme Court held that the liquidated damages should be limited to 50% considering his recovery. According to Prof. Kim's opinion, it is that the seller might recover the liquidate damages in full in spite of the fluctuation of the market price, that is to say, the amount shoud be cut down by official authority in time of breach of contract or rescission. And he is mentioning the assessment of damages and the time of the assessment of damages in Canadian law and other related common law cases in a perspective of comparative legal studies. Finally, On considering provisions about liquidated damages, its base point in judgment should be required to be legislated, however, for the present, I think that reduction of amount by official authority in unreasonable liquidated damages and its base point in judgment should be time of closing argument in fact finding proceedings.