화해계약에서 창설된 법률관계상의 의무에 대한 불이행의 효과 - 영미법상 executory accord와 substituted contract 법리의 시사점 - - 대법원 2018. 6. 28. 선고 2018다201702 판결 -

The Supreme Court Decision in case no. 2018Da201702 brings into focus the constitutive effects of settlement (or comprise) agreement and the enforceable legal remedies for noncompliance in the case of failure to fulfill the legal obligations established by the settlement agreement. In the subject supreme court decision making process, the court interprets the 'special agreement' as a 'condition precedent', which allows to deny the validity of the settlement agreement itself. The current results may reflect a technique used as a mean to rescue to the other party's rights in the case that legal obligations established by the settlement agreement are not fulfilled. While 'condition precedent' has the advantage of simplifying the legal relationship by the nullification of the legal relationship in settlement agreement, it leaves the processing of the implemented parts unsolved, and is not in alignment with respecting the nature of the reconciliatory system in performing end-to-end resolution of a dispute. Here, we propose an alternative approach in decision to this case, where the 'special agreement' is made to partially limit the constitutive effects of the settlement agreement. We argue that the current alterative of a partial limitation may allow relief for the other party while simultaneously confirm the validity of the 'special agreement'. Considering the limited ongoing discussion regarding enforceable legal remedies and subsequent constitutive effects in the case of noncompliance to legal obligations in settlement agreement, we hope that the current case discussed may lead to more active research on settlement agreement. Our current alternative proposal in decision making processes provide a practical approach to similar cases in the future, and contribute to further research on settlement agreement.