이행보증금의 법적 성질 ―대상판결: 대법원 2016. 7. 14. 선고 2012다65973 판결―

Abstract

This ruling concludes a memorandum of understanding regarding the business acquisition transaction between the parties in a business acquisition transaction, and the buyer issues a security deposit to the seller for the performance of the obligation under the memorandum of understanding and makes it a penalty, and they agreed not to claim or exclude other damages, etc. In spite of the prestigious provision that the penalty is a penalty agreed upon in a memorandum of understanding between the parties, this judgment is deemed to be a substantial penalty for breach of contract and the reduction is recognized by applying Article 398 (2) of the Civil Code on the Liquidated Damages Provision. However, in the memorandum of understanding concluded between equal parties due to the nature of the takeover transaction, if the agreement is made to not to claim any other compensation for damages except a penalty for performance, the effect of the agreement is recognized in the principle of private autonomy or freedom of contract. It would be considerable to view this as a penalty and see it as impossible to reduce under Article 398 (2) of the Civil Code.