부제소합의 효력과 그 민법상 책임에 관한 연구

The Supreme Court strictly interprets the requirements for recognizing a covenant not to sue. According to this, in the case of an agreement not to sue related to criminal litigation and administrative litigation, it is subject to public authority that cannot be disposed of by the parties, so it cannot be bound by the state agency. The same applies to a comprehensive covenant not to sue. Therefore, if the agreement not to sue does not meet the requirements presented by the Supreme Court, even if the lawsuit is filed in violation of the agreement not to sue, it cannot be an obstacle to the progress of the case. As such, the previous discussions have focused on whether it is possible for the agreement not to sue to deprive the right to file a lawsuit itself or whether to allow the filing or maintenance of a lawsuit against the agreement. However, in recent practice, the number of disputes over the civil law liability of a party who violates a covenant not to sue and the legal remedy of the other party is increasing. In light of the interpretation of the parties' intent, an agreement not to sue prohibiting criminal litigation, administrative litigation, and comprehensive form of unfair litigation includes an agreement to waive the right to sue itself in relation to government agencies such as courts (in other words, the intention to bind the court and other government agencies based on such agreement), and an agreement to bear the duty to omit to exercise the right to sue, present unfavorable facts or evidence, or make other related statements or arguments in relation to the other party (in other words, the intention to bind the parties to the agreement based on such agreement). If the legal principle of partial invalidity is applied to this, it is reasonable to deem that the latter agreement is valid, even if the former agreement is invalid. As such, considering the intent of the parties to a covenant not to sue to prevent a dispute from occurring and the purpose or intent of such covenant, it is reasonable to recognize the validity of the Civil Act between the parties to the covenant not to sue, unless there are other special circumstances, even in cases where the parties agree not to sue a specific case related to criminal or administrative litigation, or agree not to sue in a comprehensive form to the effect of prohibiting unfair suit made in a situation where continuous and repetitive disputes are raised without any special grounds. Such interpretation respects the intention of the parties who have agreed not to sue and is in line with the principle of private autonomy. As such, in the case of the above type of agreement not to sue, considering both the legal aspect and the substantive legitimacy, even if the agreement to deprive the right to sue itself is invalid, it should be considered that the effect of bearing a certain duty of omission occurs. Therefore, the other party may seek various legal remedies against the party who breaches the covenant not to sue, such as termination of the contract, claim for damages, and claim for penalty.