손해배상액의 예정과 위약벌의 구별에 대한 연구 - 위약벌 법리 관련 영국법과 우리 민법의 비교 연구를 중심으로

The purpose of this paper is to examine the standards for liquidated damages and penalties and to explore their characteristics in contracts. The Supreme Court of the Republic of Korea recognizes both liquidated damages and penalties as valid contractual clauses. However, there is a distinction between the two. If the amount specified as liquidated damages is deemed excessive, the court has the authority to reduce the amount. In contrast, for penalties, the court lacks the authority to reduce the amount, given the penalty’s intended purpose. Even when a penalty is exceptionally high, Article 398(2) of the Civil Act of the Republic of Korea cannot be applied by analogy. The South Korean court refuses to apply this provision to penalty cases because the functional characteristics of liquidated damages and penalties are fundamentally distinguished under the Korean Civil Act. In contrast, under the law of the United Kingdom, penalty clauses in contracts are deemed invalid, while liquidated damages clauses are considered valid. The Supreme Court of the United Kingdom evaluates the validity of liquidated damages by conducting a comparative analysis of the amount specified in the contract and the actual damages incurred. However, the court has shifted from this strict approach to a more lenient one by introducing the concept of the creditor’s legitimate interests in a contract. Fundamentally, the distinction lies in the purposes of liquidated damages and penalty rules. Historically, liquidated damages were seen as essential for compensating creditors, while penalties were designed to enforce debtor compliance with contract terms. Recent decisions by the Supreme Court of the United Kingdom suggest that, given evolving contractual practices, the purposes of liquidated damages and penalties have become intertwined. In other words, the purpose of liquidated damages may overlap with that of penalties in certain types of contracts. Consequently, the Supreme Court of the United Kingdom introduced the concept of “legitimate interests” to assess the validity of liquidated damages clauses, shifting the focus away from distinguishing the functional characteristics of liquidated damages and penalties. When it becomes challenging to distinguish between liquidated damages and penalties in terms of their purpose and functional characteristics, the concept of an agreed damages clause can serve as an umbrella term for both. This idea has been discussed in dissenting opinions in the en banc case of the Supreme Court of South Korea. If this approach is adopted, courts may be able to justify applying Article 398(2) of the Civil Act by analogy in penalty cases. However, the purpose and characteristics of these clauses alone cannot serve as decisive standards for distinguishing between liquidated damages and penalties. Therefore, it is crucial to consider the true intent of the contracting parties when drafting an agreed damages clause. The Supreme Court of the United Kingdom has developed the theory of penalty rules to address the difficulty of distinguishing between liquidated damages and penalties in modern commercial transactions. This paper will first conduct a historical review of cases from the Supreme Court of the United Kingdom that deal with penalty rules. Second, it will analyze trends in these decisions to reveal the implications of penalty rules, facilitating a discussion on how to distinguish liquidated damages and penalties despite the similarity of their purpose and characteristics. Finally, how the development of penalty rules in the United Kingdom provides insights into addressing similar issues in South Korea will be discussed.