개인구독
소속 기관이 없으신 경우, 개인 정기구독을 하시면 저렴하게
논문을 무제한 열람 이용할 수 있어요.
지원사업
학술연구/단체지원/교육 등 연구자 활동을 지속하도록 DBpia가 지원하고 있어요.
커뮤니티
연구자들이 자신의 연구와 전문성을 널리 알리고, 새로운 협력의 기회를 만들 수 있는 네트워킹 공간이에요.
초록· 키워드
오류제보하기
Earnest money is presumed to be dissoluble money, according to §565 of Korean civil law. On the other hand, the Korean Supreme Court has recognized the earnest money stipulated in §398 as liquidated damages or penalty, in case there is an agreement between two parties. The agreement is that breaching contract, the deliverer of sale gives up earnest money, while the receiver repays as double money as earnest money. But I think that such judicial interpretation on earnest money is unreasonable. As long as the Supreme Court recognizes earnest money stipulated in 398 as liquidated damages, obligee may not claim damages additionally even though his damage is high.
In Korea, a buyer used to pay the price for purchase in three instalments, called as first money (earnest money), middle money, and last money respectively. The legal position of the buyer becomes more secure, when he pays up to middle money. He may become the owner of the property, when the last money is paid. The buyer may relieve himself of his obligee by depositing in court, and then become the owner of the property by its registration, if the seller is unable to accept or refuses the last money. In such circumstances, if the seller transfers the right of the property to other buyer, the first buyer should be able to claim damages in Lieu of performance. But the Supreme Court has not recognized the claim of damages in Lieu of performance, but only of damages in tort. Such judgement of the Court may not be in harmony with custom and litigation economy in some cases. The legal fate of earnest money as dissoluble money, and as liquidated money or penalty is often simultaneous in our custom of transaction. First of all, this paper treats legal interpretation regarding such problems and the desirable policy of legislation of §398(2) as related matters.
On the other hand, penalty in contract may be claimed regardless of taking place of obligee's damage. Therefore, it may often make double profits for obligee. I think that it is, moreover, contrary to the principle of nulla poena sine lege and legal system of modem ages divided into the civil law and the criminal law. In my opinion, there is not inconvenience without it in our legal life. Secondly, this paper deals with the desirable policy of legislation of §39S(4) regarding this problem.
My conclusion related to interpretation is as follows:
The legal fate of earnest money as dissoluble money according to §565, and as liquidated damages or penalty according to §398 may be simultaneous.
And I suggest that it is desirable for 39S to be amended as follows:
§39S(2) : Where the amount of damages determined in advance is unduly high or low, the court may deduce or increase the amount to a more reasonable and proper sum.
§398(4) : The agreement of a penalty is deemed to be determined in advance of the amount of damages.
In Korea, a buyer used to pay the price for purchase in three instalments, called as first money (earnest money), middle money, and last money respectively. The legal position of the buyer becomes more secure, when he pays up to middle money. He may become the owner of the property, when the last money is paid. The buyer may relieve himself of his obligee by depositing in court, and then become the owner of the property by its registration, if the seller is unable to accept or refuses the last money. In such circumstances, if the seller transfers the right of the property to other buyer, the first buyer should be able to claim damages in Lieu of performance. But the Supreme Court has not recognized the claim of damages in Lieu of performance, but only of damages in tort. Such judgement of the Court may not be in harmony with custom and litigation economy in some cases. The legal fate of earnest money as dissoluble money, and as liquidated money or penalty is often simultaneous in our custom of transaction. First of all, this paper treats legal interpretation regarding such problems and the desirable policy of legislation of §398(2) as related matters.
On the other hand, penalty in contract may be claimed regardless of taking place of obligee's damage. Therefore, it may often make double profits for obligee. I think that it is, moreover, contrary to the principle of nulla poena sine lege and legal system of modem ages divided into the civil law and the criminal law. In my opinion, there is not inconvenience without it in our legal life. Secondly, this paper deals with the desirable policy of legislation of §39S(4) regarding this problem.
My conclusion related to interpretation is as follows:
The legal fate of earnest money as dissoluble money according to §565, and as liquidated damages or penalty according to §398 may be simultaneous.
And I suggest that it is desirable for 39S to be amended as follows:
§39S(2) : Where the amount of damages determined in advance is unduly high or low, the court may deduce or increase the amount to a more reasonable and proper sum.
§398(4) : The agreement of a penalty is deemed to be determined in advance of the amount of damages.
목차
1. 서론
2. 위약계약금의 전개과정
3. 판례의 계약금에 관한 법리구성과 그 입법론
4. 결론
참고문헌
Abstract
참고문헌 (0)
참고문헌 신청함께 읽어보면 좋을 논문
논문 유사도에 따라 DBpia 가 추천하는 논문입니다. 함께 보면 좋을 연관 논문을 확인해보세요!
-
계약금에 관한 소고
동아법학
2007 .08
-
전자화폐의 구현에 따른 법적 쟁점에 관한 소고
인터넷전자상거래연구
2003 .02
-
C-Money 제도 도입의 타당성 검토
정책연구
2005 .08
-
돈과 종교 : 돈에 대한 종교인의 태도 및 담론 고찰
종교와 문화
2019 .01
-
전자화폐의 확산에 따른 주요 쟁점에 관한 一考
통상정보연구
2003 .12
-
정책금융의 효율성 제고에 관한 일고찰 : 일본에서의 최근 논의를 중심으로
한양법학
2008 .06
-
Money Makes the World go Around: European Youth and Financial Socialization
International Journal of Human Ecology
2004 .01
-
전속계약의 계약금(전속금) : 연예인의 경우를 중심으로
동아법학
2008 .02
-
電子貨幣의 支給決濟機能 活性化에 관한 硏究
대한경영학회지
2004 .12
-
사이버머니의 품질, 신뢰, 사용의도간의 관련성 연구 : 사이버머니 신뢰의 매개효과를 중심으로
인터넷전자상거래연구
2018 .12
-
부당해고 구제절차에서의 금전보상 제도 및 이행강제금 제도
노동법학
2007 .12
-
Velocity of Money in Korea, Japan, the United Kingdom and the United States of America: 1962-2011
무역연구
2015 .01
-
전자화폐와 통화정책
무역학회지
2001 .06
-
왜 버찌씨를 받을까?: 하이에크 경쟁 화폐이론의 재구성
질서경제저널
2019 .01
-
권리금에 관한 연구
중앙법학
2010 .12
이 논문의 저자 정보
이 논문과 함께 이용한 논문
최근 본 자료
댓글(0)
0
UCI(KEPA) : I410-ECN-0101-2009-366-013789177