판례로 본 M&A 계약상 이행보증금의 법적 성질

Performance guarantee clause, which is always included in the M&A contract, especially in the memorandum of understanding (MOU), is a kind of cancellation charge which is classified into penalty for breach of contract or liquidated damages. Performance guarantee clauses in the recent cases related to M&A tend to be classified as Liquidated Damages. When considering the nature of M&A transaction, however, it is needed to further examine the criteria which the court considers to classify the legal nature of it. It is case law that performance guarantee is classified as liquidated damages in principle and there must be special circumstances to be classified into penalty. And the court suggests several concrete criteria to be considered for the judgment of special circumstances in the cases. The author suggests that the court needs to put more importance on the private autonomy when applying these concrete criteria, especially in the M&A transaction. That means that the terms used in the contract have to be interpreted as it means if it is clear because M&A is a transaction between equal economic parties in a market of reasonable deals. In addition, the court needs to avoid compassionate judgment for a party based upon a premise that the party is economically weak because M&A is a transaction between equal parties. M&A transactions are quite similar in the process and structure and quite standardized in the required documentation. Therefore, it is a legal field which strongly requires unified and consistent application of legal criteria. It is highly questionable, however, whether the criteria are applied consistently in the recent M&A cases. When the core criteria are reviewed and applied consistently in all similar cases, we can prevent confusion in the market and expect legal stability.