계약이행보증금에 관한 연구

Abstract

In this thesis, I researched major legal subjects of a contract deposit. To begin with, I studied the regal nature of a contract deposit. In case that a contract has a method of belonging of a contract deposit when the default on obligations has arisen, the regal nature of a contract deposit is a kind of a security for damages. While the contract has not a method of belonging of a contract deposit, the contract deposit is a kind of a cancellation charge,and so it can be admitted as a previously fixed amount of damages or a penalty for a breach of a contract. It is determined by interpretation of a contract whether a cancellation charge is a previously fixed amount of damages or a penalty for a breach of a contract. It is presumed that a cancellation charge is a previously fixed amount of damages by article 398(4) of Korean civil law, so a cancellation charge is a previously fixed amount of damages unless a specific agreement has been made between the parties. Secondly, I studied the requisite for payment of a contract deposit. If a contractor(a person who gives out a contract for the work) wants to claim the contract deposit from the guarantor, the warranty events or insured events should occur before. It become an issue when the warranty events or insured events occur. It is not easy to standardize and to determine whether the termination of a contract is needed or not when the contractor wants to claim the contract deposit from the guarantor. One adjudication of the Supreme Court of Korea ruled that the termination of a contract is needed, and the other adjudication of the Supreme Court of Korea ruled that the termination of a contract is not needed. However we cannot say these two adjudications are contradictory to each other. Thirdly, I studied the coverage of a contract deposit. In case that the legal nature of the contract deposit is a penalty for a breach of a contract, all the contract deposit belongs to the contractor. In case that the legal nature of the contract deposit is a previously fixed amount of damages, in principle the contract deposit covers all damages from which the contractor suffers owing to the default of the other contractor(a person who contracts to do the work).