2013Da7608 Cruc Punishment

Han Won chidity Co., Ltd.

1. Disia Co., Ltd.;

2. Stock company, Kim Jong-chul;

Seoul High Court Decision 2012Na65654 Decided December 28, 2012

May 9, 2013

All appeals are dismissed.

The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

The penalty agreement is set to secure the performance of an obligation, and its contents are different from the scheduled amount of compensation, so it cannot be reduced by applying Article 398(2) of the Civil Act to the liquidated damages. However, in a case where the penalty agreed in comparison with the interests of creditors resulting from the compulsory performance of the obligation is excessively excessive, it shall be null and void in whole or in part against public order and morality (see Supreme Court Decisions 2000Da56976, Apr. 23, 2002; 2005Da26277, Oct. 13, 2005; 2005Da26277, Oct. 13, 2005; hereinafter the same shall apply). In light of the purport of the proviso of Article 335(1) of the former Commercial Act (amended by Act No. 10600, Apr. 14, 201).

According to the reasoning of the judgment below, the court below rejected the Defendants’ assertion that, based on the circumstances in its reasoning acknowledged by its adopted evidence, the agreement on the penalty for breach of the attached agreement of this case is excessively excessive compared to the Plaintiff’s interest obtained by the enforcement of the obligation, and that the prohibition of disposal of the attached agreement of this case cannot be deemed as violating Article 335 of the former Commercial Act because the prohibition of disposal of the attached agreement of this case is contrary to the public order and good morals or the possibility of the shareholder’s investment and recovery of capital, and thus, it cannot be deemed as violating Article 335 of the former Commercial Act.

Upon examining the records in light of the above legal principles, the above measures of the court below are justified and acceptable, and there is no error in the misapprehension of legal principles as to the validity of a penalty agreement, as alleged in the grounds of appeal.

Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim So-young

Justices Shin Young-young

Note Justice Lee Sang-hoon

Justices Kim Yong-deok