[1] The standard for determining whether the penalty for delay is excessive where the contract amount is determined to be calculated by multiplying the penalty for delay by the rate of the penalty for delay

[2] Meaning of "where the estimate of damages" under Article 398 (2) of the Civil Code provides that "where the estimate of damages is unreasonably excessive, the method of judgment, and whether the court may ex officio reduce the estimated amount of damages where the estimated amount of damages is unreasonably excessive (affirmative)

[3] Whether the court has an obligation to determine ex officio that the penalty for delay is not unfairly excessive even if the penalty for delay is not deemed unduly excessive (negative)

[1] In cases where the calculation of liquidated damages is determined by multiplying the total amount of the contract by the liquidated damages rate, according to Article 398(2) of the Civil Code, where the estimated amount of liquidated damages is unreasonably excessive, the court may reduce the estimated amount of liquidated damages, and it is interpreted that the estimated amount of liquidated damages refer to the total amount of liquidated damages under the language and text. Thus, the determination of excessive liquidated damages shall be made based on the total amount of liquidated damages.

[2] In a case where the estimated amount of damages is unfairly excessive, the court may reduce it ex officio without a party's assertion. The "unfairly excessive case" here means the case where the payment of the estimated amount of damages is deemed to result in the loss of fairness by imposing unfair pressure on the debtor who is in the position of the economically weak in light of the general social concept in light of all the circumstances such as the status of the creditor and the debtor, purpose and content of the contract, the motive scheduled for the amount of damages, the ratio of estimated amount of damages to the amount of debts, the estimated amount of damages, the estimated amount of damages, and the transaction practices at the time. Meanwhile, in determining whether the estimated amount of damages is unreasonably excessive and the scope of reasonable reduction pursuant to the above provision, the court shall comprehensively consider all the above circumstances arising therefrom as at the time of the closing of argument at the fact-finding court.

[3] In a case where the penalty for delay is not deemed to be excessive unfairly, if there is no allegations by the parties, it is not necessary for the court to determine ex officio that the penalty for delay is excessive.

[1] Article 398(2) of the Civil Act / [2] Article 398(2) of the Civil Act / [3] Article 398(2) of the Civil Act, Article 292 of the Civil Procedure Act

[1] Supreme Court Decision 95Da11436 delivered on April 26, 1996 (Gong1996Sang, 1683) / [2] Supreme Court Decision 98Da4546 delivered on April 23, 199 (Gong1999Sang, 1001) Supreme Court Decision 99Da38637 delivered on July 28, 200 (Gong200Ha, 1929)

[Judgment of the court below]

Korea

Seoul High Court Decision 99Na57326 delivered on September 8, 2000

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of the supplemental appellate brief that has failed to submit the appellate brief).

1. The judgment of the court below

According to the reasoning of the judgment of the court below, the court below acknowledged each fact based on the evidence of employment, and rejected all of the plaintiff's claims on the ground that the defendant's failure to observe the delivery period under each of the supply contracts of this case due to reasons attributable to the plaintiff, and the defendant did not use the reduction condition passing system or warranty liability, and the payment of liquidated damages calculated by multiplying each of the above sales proceeds by the rate of liquidated damages agreed to each of the above sales proceeds in proportion to the date of delay as stipulated in the above supply contract of this case

2. The judgment of this Court

Examining the evidence admitted by the court of first instance as cited by the court below in light of the records, the above fact-finding and judgment by the court of first instance shall be justified, and there shall be no errors in the misapprehension of the legal principles as to damages for delay due to the violation of the rules of evidence.

Meanwhile, under Article 398(2) of the Civil Act, where the calculation of liquidated damages is determined by multiplying the total amount of the contract by the liquidated damages rate, the court may reduce the estimated amount of the liquidated damages where the estimated amount of the liquidated damages is unreasonably excessive, and it is interpreted that the estimated amount of the liquidated damages refer to the total amount of the liquidated damages under the language. Thus, whether the liquidated amount of the liquidated damages corresponding to the liquidated damages should be determined on the basis of the total amount of the liquidated damages (see Supreme Court Decision 95Da11436, Apr. 26, 1996). Where the estimated amount of the liquidated damages is unreasonably excessive, the court may reduce the liquidated damages ex officio without any allegations by the parties concerned, and “unfairly excessive” in this context means that the determination of the estimated amount of the liquidated damages should not be made on the basis of 98 Supreme Court’s ruling ex officio and 99Da475, supra, by taking into account all circumstances such as the parties’ status, purpose and contents of the contract, the estimated amount of the liquidated damages, and 984.

In light of the records, in light of the general social concept by taking into account all the circumstances revealed by the closing of argument in the lower court, such as the status, purpose and content of the contract, the anticipated motive of the amount of damages, the estimated amount of damages, the estimated amount of damages, the expected amount of damages, and the transaction practices at the time of the closing of argument in the lower court, the payment of the estimated amount of damages in the instant case did not lead to the loss of fairness by unfairly pressure on the debtor who is in the position of the economically weak. Thus, in this case where the Plaintiff did not separately claim a reduction of the estimated amount of damages until the closing of argument in the lower court, the lower court did not ex officio decide on the reduction of the estimated amount of damages in the instant case, and did not err by misapprehending the legal principles on the reduction of the estimated amount of damages

The grounds of appeal are without merit.

3. Therefore, the appeal is dismissed, and all 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 Seo-sung (Presiding Justice)