M&A 계약 위반과 손해 - 손해액 산정과 민사소송법 제202조의 2의 활용 여부 -

Up until now, M&A agreement related disputes mostly dealt with issues of whether a breach of any of representations and warranties under the contract has occurred or whether an indemnified party(mostly a purchaser) makes such claim in good faith or bad faith, and there have not been many cases where determining the scope of damages was directly dealt with as a core issue as the next stage. Given that there is more understanding of and there have been more discussions of the more complex provisions of M&A agreements in academia as well as in practice, there is now a need to address the issue of calculating the damages amount. In particular, while it has not yet gained much attention in the civil law domain, through this article, the author proposes to review the issue based on the calculation of damages provision that was newly introduced by the amendment to the Korean Civil Procedure Code (Section 202-2 of the Korean Civil Procedure Code) in 2016 and linking the meaning of this provision with the issue of calculation of damages arising in connection with breach of M&A agreements. This paper also examines the legislative landscape and purpose of Section 248 of the Civil Procedure Code of Japan and Section 287 of the Civil Procedure Code of Germany, the laws which Section 202-2 of the Korean Civil Procedure Code is modeled after. However, such comparative review results are for reference purposes only and it cannot be concluded that the same interpretation be applied to the Korean cases and laws. Further, perhaps it is time to take a critical view under scrutiny to the existing position that has followed the old German theory of analysis regarding existing scope of damages under German legal circumstance. As such, the court’s role in acknowledging the amount of damages through the application of Section 202-2 of the Korean Civil Procedure Code is not the factual issue (acknowledging the existence of any fact) but the legal issue (making a determination on legal standards applicable to damages), and such determination should not be approached only through procedural law but as part of substantive law, including M&A agreement, and be seen as court standards that permit the discretion of the court. Regarding this, even if it is interpreted that the court has discretion in determining damages resulting from a breach of an M&A agreement, the nature of M&A agreements need to be considered as above. In the case of M&A agreements, the applicable parties attempt to reflect the agreed terms in detail to the extent possible during the contracting stage even through investment of extensive expenses for purposes of ex ante efficiency. The parties are not expecting the court to actively intervene and interpret the applicable M&A agreement to the point where the agreement structure or contents that have been carefully constructed by the parties ends up getting amended, but viewing the expectation to consists of a restricted interpretation of the court that allows the applicable M&A agreement to be performed in the manner that the parties intended is closer to the sentiment in practice. Such limitations needs to be recognized in the calculation of damages as well.