민법상 위약벌 제도의 운용방향

Abstract

In recent days the supreme court has sentenced consecutively the cases, which handle directly the theory of fine clause of contract. In this article I used the penalty as a super ordinate concept which includes liquidated damage and fine. Especially the fine in contract law is imposed as sanction on the party in breach of contract. Through these cases the court declared the new perspectives which have been not appeared in the previous cases. This seems to reveal the fundamental contradiction of fine clause of contract law. The revision draft of civil law, in which the scholarship of civil law have taken part for a long time, took a motto ‘from liquidated damage to penalty’ in connection with the theme of this article. In other words we have to refuse to separate the penalty as the two opposite concepts and integrate into the concept of penalty. In this point the recent cases of the court seem to deepen the previous dualism. This approach makes confusion theoretically and practically about the control of penalty in contract law. In this article I tried to argue this point through analysis of cases of the court. In conclusion I got to the point that the penalty as a integrate concept is enough and we do not need the fine in contract which is heterogeneous to contract functionally and ideologically. On behalf of this the concrete factors of appraisal for control of penalty have to be analyzed deeply.