지원사업
학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
오류제보하기
Earnest money is presumed to be dissoluble money, according to §565 of Korean civil law. On the other hand, the Korean Supreme Court has recognized the earnest money stipulated in §398 as liquidated damages or penalty, in case there is an agreement between two parties. The agreement is that breaching contract, the deliverer of sale gives up earnest money, while the receiver repays as double money as earnest money. But I think that such judicial interpretation on earnest money is unreasonable. As long as the Supreme Court recognizes earnest money stipulated in 398 as liquidated damages, obligee may not claim damages additionally even though his damage is high.
In Korea, a buyer used to pay the price for purchase in three instalments, called as first money (earnest money), middle money, and last money respectively. The legal position of the buyer becomes more secure, when he pays up to middle money. He may become the owner of the property, when the last money is paid. The buyer may relieve himself of his obligee by depositing in court, and then become the owner of the property by its registration, if the seller is unable to accept or refuses the last money. In such circumstances, if the seller transfers the right of the property to other buyer, the first buyer should be able to claim damages in Lieu of performance. But the Supreme Court has not recognized the claim of damages in Lieu of performance, but only of damages in tort. Such judgement of the Court may not be in harmony with custom and litigation economy in some cases. The legal fate of earnest money as dissoluble money, and as liquidated money or penalty is often simultaneous in our custom of transaction. First of all, this paper treats legal interpretation regarding such problems and the desirable policy of legislation of §398(2) as related matters.
On the other hand, penalty in contract may be claimed regardless of taking place of obligee's damage. Therefore, it may often make double profits for obligee. I think that it is, moreover, contrary to the principle of nulla poena sine lege and legal system of modem ages divided into the civil law and the criminal law. In my opinion, there is not inconvenience without it in our legal life. Secondly, this paper deals with the desirable policy of legislation of §39S(4) regarding this problem.
My conclusion related to interpretation is as follows:
The legal fate of earnest money as dissoluble money according to §565, and as liquidated damages or penalty according to §398 may be simultaneous.
And I suggest that it is desirable for 39S to be amended as follows:
§39S(2) : Where the amount of damages determined in advance is unduly high or low, the court may deduce or increase the amount to a more reasonable and proper sum.
§398(4) : The agreement of a penalty is deemed to be determined in advance of the amount of damages.
In Korea, a buyer used to pay the price for purchase in three instalments, called as first money (earnest money), middle money, and last money respectively. The legal position of the buyer becomes more secure, when he pays up to middle money. He may become the owner of the property, when the last money is paid. The buyer may relieve himself of his obligee by depositing in court, and then become the owner of the property by its registration, if the seller is unable to accept or refuses the last money. In such circumstances, if the seller transfers the right of the property to other buyer, the first buyer should be able to claim damages in Lieu of performance. But the Supreme Court has not recognized the claim of damages in Lieu of performance, but only of damages in tort. Such judgement of the Court may not be in harmony with custom and litigation economy in some cases. The legal fate of earnest money as dissoluble money, and as liquidated money or penalty is often simultaneous in our custom of transaction. First of all, this paper treats legal interpretation regarding such problems and the desirable policy of legislation of §398(2) as related matters.
On the other hand, penalty in contract may be claimed regardless of taking place of obligee's damage. Therefore, it may often make double profits for obligee. I think that it is, moreover, contrary to the principle of nulla poena sine lege and legal system of modem ages divided into the civil law and the criminal law. In my opinion, there is not inconvenience without it in our legal life. Secondly, this paper deals with the desirable policy of legislation of §39S(4) regarding this problem.
My conclusion related to interpretation is as follows:
The legal fate of earnest money as dissoluble money according to §565, and as liquidated damages or penalty according to §398 may be simultaneous.
And I suggest that it is desirable for 39S to be amended as follows:
§39S(2) : Where the amount of damages determined in advance is unduly high or low, the court may deduce or increase the amount to a more reasonable and proper sum.
§398(4) : The agreement of a penalty is deemed to be determined in advance of the amount of damages.
목차
1. 서론
2. 위약계약금의 전개과정
3. 판례의 계약금에 관한 법리구성과 그 입법론
4. 결론
참고문헌
Abstract
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UCI(KEPA) : I410-ECN-0101-2009-366-013789177