기업인수계약상의 진술 및 보장에 따른 하자담보책임

A contract to transfer an entity’s shares or assets for the purposes of company takeover purposes includes a clause of the representation and warranties of the accuracy of information about the entity at the time of the contract, which is influenced by the Anglo-American law. If the representations and warranties are found to be different from the facts, the buyer who suffers the loss may receive compensation from the seller by claiming damages. However, in regard of dealing with cases in which the buyer had acknowledged that representations and warranties were different from the facts at the time of the contract, Korean Supreme Court has made a decision that accepted the buyer’s claim unless it was contrary to the rules of good faith. It is based on a sense of respect in which the provisions of representations and warranties have the objective of reconciling the interests of the seller and the buyer of the company acquisition contract. In the meantime, the Supreme Court takes a defensive attitude toward applying the provision of the warranty liability with regard to the buyer who was aware of the seller’s violation of representations and warranties. However, since corporate acquisition contract also consists of a characteristic of a sales contract, there is no reason to be excluded from the application of the warranty liability under the civil law. In this respect, I came out with the conclusion that applying the warranty liability as a responsibility for the seller’s breach of representations and warranties is reasonable despite the Supreme Court’s attitude. Meanwhile, since the purchasing object of the corporate acquisition contract is a stock issued by a company, the immediate application of the warranty liability due to the target company’s defects shall bring about some matters. In this regard, French civil law resembles to Korean civil law in respect to having a provision of the warranty liability in terms of sales. By observing the precedents of Court of Cassation of France, which recognizes that there could be defects in stocks due to defects in the target companies under the French civil law, I looked for implications in analyzing Korean civil law. These implications might be helpful for the resolution of diverse matters about the warranty liability of the seller toward the buyer according to the breach of the representations and warranties.