도급계약에서의 계약이행보증금의 성질에 관한 판례의 검토

In most cases, the agreement of cancellation charge is performed to compel the performance of contract, to simplify compensation for damage, or to lynch for breach of contract. In this thesis, the concept of cancellation charge is interpreted with more pliability to reflect the actual condition of contract. It means that cancelation charge can be admitted as not only a kind of liquidated damages with accepted reduction or penalty for breach of contract, but also a kind of security deposits, security damages, or both. Sure, it is presumed that a cancellation charge is a liquidated damages by article 398(4) of korean civil law, so a cancellation charge is a liquidated damages unless a specific agreement has been made between the parties. This view on cancellation charge is applied in the Supreme Court about the contract deposit in case of contract for work. First, without agreement reverted, the contract deposit has nature of down payment. In the situation where the only deposit is provided, the contract for work can be cancelled according to article 565 of korean civil law. Second, the contract deposit is considered as security deposits or security damages without specific agreement that contract deposit is regarded as cancellation charge. In this case, the orderer has responsibility to examine occurrence and range of damage to get security damage from contractor. Third, the contract deposit only with agreement reverted in contract work is admitted as liquidated damages. Also, with agreement of delay damage and contract deposit in contract work, the contract deposit has been considered as liquidated damages in the precedents. In this case, the orderer could not take fixed excess damages from the contractor, and the deposit can be reduced by courts when it is unfairly excessive. Forth, the contract deposit has nature of penalty for non-performance of contract when it is used to pressure performance of contract and to lynch the contractor in breach of contract. This case occurs when compensation of actual damage is admitted other than agreement reverted of contract deposit. On this occasion, Courts cannot reduced the contract deposit and the orderer can claim indemnification of actual damage separately. Fifth, the contract deposit is considered as specific liquidated damages or security damages with agreement that compensation of fixed excessive damages would be demanded besides reversion of contract deposit in contract work. The orderer can charge the contractor the compensation other than reversion of contract deposit by proving fixed excess damages. Sixth, the contract deposit has nature of both liquidated damages and penalty for breach of contract. In this case, the contract deposit is divided between liquidated damages for compensation of damages and penalty for breach of contract to restrain defaults on contract.