진술 및 보장 조항의 새로운 쟁점

Abstract

Breaches of representations and warranties clause have increased in recent years, occasionally leading to litigation involving claims for indemnification. However, currently court precedents involving indemnification for breach of representations and warranties are mostly those of lower courts and still in the process of appeal. Therefore, how the Supreme Court of Korea will rule on specific issues related to representations and warranties and breaches thereof is being paid close attention by the legal community. The main subject of interest in connection with recent court precedents is how representations and warranties and indemnification liability arising from breaches thereof will be theorized within the realms of Korean domestic law. Furthermore, determination of the monetary amount of the indemnification liability for breach of representations and warranties is also a topic being hotly debated. This article first introduces the current discussions within Korea on the functions and legal characteristics of representations and warranties clause,then based on such discussions, reviews positions taken by academic theories and court precedents in regards to issues related to indemnification liability for breach of representations and warranties, in particular,recognition of indemnification liability even for purchasers who negligently made purchases or made purchases despite the knowledge of breach of representations and warranties. In addition, this article introduces methods of assessing amounts of indemnification liability currently being considered in Korea and relevant issues thereof. when practice or court precedents on issues of breach of representations and warranties have not been firmly established, it would be premature to reach conclusion at the current stage. However, the tendency of the recent court decisions have been to respect the parties’ certain understandings, it appears likely that practice of drafting agreements based on such tendency will be established. But additional discussions should be made as more precedents regarding representations and warranties are established.