손해배상액 예정과 위약벌의 구분 기준 및 관련 쟁점에 대한 검토- 대법원 2016. 7. 14. 선고 2012다65973 판결에 대한 검토 -

Abstract

In the famous recent case, Supreme Court July 14, 2016 Decision 2012DA65973, regarding the standard of classification between the advance determination of the amount of damages and the penalty, made a very important decision. In this case, the parties of the contract have agreed the particular contract clause that in the event of the non-performance of an obligation, the party has to pay the pre-determined amount of money as “the penalty in the event of the non-performance of an obligation” to the other party. Our Civil Act Article 398 (Liquidated Damages) provided that : “(1) The parties may determine in advance the amount of damages payable in the event of the non-performance of an obligation. (2) Where the amount of damages determined in advance is unduly excessive, the court may reduce the amount to a more reasonable and appropriate sum. (3) The determination in advance of the amount of damages shall not affect the obligee's demand for performance or rescission of the contract. (4) The agreement of a penalty is presumed to be determined in advance of the amount of damages.” However, in this case, the Supreme Court decided that even if the parties agreed that the particular clause expressed as “the penalty in the event of the non-performance of an obligation”, this clause is not “a penalty” which is not under the Civil Act Article 398 (2), but “the advance determination of the amount of damages” which may be reduced the amount to a more reasonable and appropriate sum by a court. This case can suggest the new standard of classification between the determination of damages and the penalty.