「손해배상액의 예정」에서 「위약금 약정」으로- 특히 위약벌의 감액을 인정할 수 있는지 여부를 중심으로-

The parties to a contract may stipulate in advance a sum payable for non-performance for various purposes, and the stipulated payment clause may assume the form either of liquidated damages or of penalty. However, Article 398 of the Korean Civil Code, which stipulates liquidated damages, does not clearly prescribe for penalty: Paragraph 4 of Article 398 only provides that the agreed payment for non-performance is presumed to be liquidated damages. This paper reviews the criteria used for distinguishing between liquidated damages and penalty, and examines how the two forms of stipulated payment clause can be understood synthetically, and whether the court can reduce the amount of penalty. The court and academia have classified the stipulated payment clause into two categories, namely, liquidated damages and penalty, and have treated the two differently. The court can reduce the amount of liquidated damages, but not that of penalty. When the amount of penalty is excessive, the court nullifies the entire contractual penalty or a part of it on the ground that such contractual penalty is contrary to good morals and other public order (see Article 103 of the Korean Civil Code). However, such dichotomy does not seem convincing, nor can it be a proper solution. The Ministry of Justice Civil Code Amendment Committee of 2013 held a plenary session where the committee members decided to revise Article 398 so that the provision could regulate agreed payment for non-performance in general. The revised provision enables reduction of agreed payment for non-performance, thereby including penalty under its framework. During the period before the passing of the amendment, the same conclusion could be reached by analogy of Article 398. Common law juirisdictions such as England and the United States, consider contractual penalty unenforceable. Civil law jurisdictions recognize the validity of contractual penalty, allowing the court to reduce the amount of penalty. International model rules including PICC, PECL, and DCFR regulate liquidated damages and penalty together under the umbrella of the stipulated payment clause, and allow the reduction of amount in general. Considering the ways in which other jurisdictions treat agreed payment for non-performance, permitting the reduction of the amount of penalty would be a well-balanced and workable solution.