기업인수합병시 이행보증금의 법적 성격과 감액 가능성에 대한 연구 - 대법원 2016.7.14. 선고 2012다65973판결을 중심으로 -

The legal nature of the Contractor's holdback is one of the controversial issue in Korean civil law. Especially in case of the civil penalty, the law is developed by the Korean courts not by the black letter law mostly. Korean Court recognized the validity of the civil penalty in general unlikely to the US courts precedents. However Korean Court alleviated the burden sometimes based upon the Article 103 of Korean Civil Code. If a contractor wants to claim the contract deposit from the guarantor, the warranty events or insured events should occur before. It become an issue when the warranty events or insured events occur. When the legal nature of the contract deposit is a penalty for a breach of a contract, all the contract deposit belongs to the contractor. In Mergers and Acquisition cases, Contractor's holdback a.k.a Contractor deposit is used very often to secure the promised procedure of the said acquisition. In this regard, Korean Supreme Court Decision(2012Da65973) decided at 2016. 7. 14. that the legal nature of the Contractor's holdback can be decided focusing on the essence of it not being determined by the heading of the clause. Basically Supreme Court understood that this is a issue of the interpretation of a contract whether a Contractor's holdback is a previously fixed amount of damages or a penalty for a breach of a contract. However in this case Supreme Court decided the nature as predetermined damage not a penalty notwithstanding the express wording of the contract which was prepared by the lawyers and full understanding of the meaning partially because of the lack of the due diligence. This may cuase some debates in the context of the M&A.