[2] In a case where Gap corporation and Eul agreed to compensate for the amount equivalent to 150% of the purchase price in a case where one party fails to perform a contract while entering into a sales contract, the case holding that the court below erred in the misapprehension of legal principles, etc. in holding that Gap corporation did not take measures such as comparing the actual or anticipated amount of damages and the estimated amount of damages; and

1. Regarding ground of appeal No. 1

In determining whether the estimated amount of damage compensation is unreasonably excessive, the determination shall be made by taking into account all the circumstances, such as the status of the obligee and obligor, the purpose and content of the contract, the motive behind the scheduled amount of the damage compensation, the ratio of the estimated amount of the debt to the amount of the damage, the expected amount of the damage, the transaction practices at the time of the determination of whether the estimated amount of the damage is unreasonably excessive, in consideration of the size of the damage expected to actually occur, and the actual amount of the damage is not necessary, but it is necessary to prepare for the actual amount of the damage or the estimated amount of the damage in the record (see, e.g., Supreme Court Decisions 95Da33658, Nov. 10, 195; 2010Da6042, Jan. 27, 2011).

According to the reasoning of the judgment below, the court below determined that it is reasonable to reduce the sales contract of this case to 10% since the sales contract of this case provides that one party shall compensate for the amount equivalent to 150% of the sales price when the other party fails to perform the contract, which constitutes an estimate of damages, and that 150% of the sales price is unfairly excessive as the estimated amount of damages.

However, according to the reasoning of the judgment below and the evidence adopted by the court below, ① Defendant 1 entered into the instant sales contract including not only the instant real estate owned by the Defendants, but also three real estate owned by Nonparty 1, etc. adjacent thereto, including the subject matter of sale, but also caused Nonparty 1, etc. to execute the contract only for each of the instant real estate by the agreed date. ② The Plaintiff purchased each of the instant real estate for the purpose of constructing a manufacturing place, etc. using each of the instant real estate as farmland or forest for exclusive use, and Article 1 of the instant sales contract clearly states that Defendant 1 is sufficiently aware of the purpose of the contract. ③ Since each of the instant real estate was sold to a third party in the compulsory sale procedure and ownership was transferred, it was virtually impossible to develop each of the instant real estate planned by the Plaintiff due to the nonperformance of the contract at the court below, ④ In light of the fact that the Plaintiff’s actual damages incurred by the Plaintiff due to the impossibility of the execution of the contract at the court below to the extent of KRW 1,300,000.

Therefore, the lower court should have determined whether the estimated amount of damages of this case was unfairly excessive or reasonable to reduce the estimated amount of damages of this case, after taking measures, such as comparing the actual or estimated amount of damages of the Plaintiff and the estimated amount of damages of this case, known to the records. Nevertheless, the lower court considerably reduced the estimated amount of damages of this case to 10% of the purchase price on the ground that the estimated amount of damages of this case was higher than the estimated amount of damages for the amount of debts under the sales contract of this case as seen earlier. In so doing, the lower court erred by misapprehending the legal doctrine on reduction of the estimated amount of damages, thereby adversely affecting the conclusion of the judgment.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, the court below determined that there is no evidence to acknowledge that Defendant 2 granted the power to conclude the instant sales contract to Defendant 1, and that the representation of the expression under Article 125 or 126 of the Civil Act cannot be deemed to have been established solely on the grounds stated in its reasoning.

However, according to the reasoning of the judgment below and the evidence adopted by the court below, ① Defendant 1, as the mother of Defendant 2, 3, and 4, had the seal impression of Defendant 2 at the time of the conclusion of the instant sales contract; ② the Defendants jointly inherited each of the instant real estate from the deceased Nonparty 2; and thereafter, Defendant 2 acquired all of the instant real estate shares; and Defendant 1 entered into the instant sales contract with the Plaintiff as the object of sale; ③ Defendant 1 delivered the Plaintiff’s written consent for the use of each of the instant real estate in its name and the respective seal impression to the Plaintiff immediately after the conclusion of the instant sales contract; ④ Even if around July 20, 208, Defendant 1 had the authority to dispose of each of the instant real estate with the Plaintiff’s representative director, Nonparty 3, etc., and suffered damages due to the nonperformance of obligations, etc., on behalf of the Plaintiff 2, 2,3, and 4, respectively, without any justifiable reason to deem that each of the instant real estate was entrusted by the Defendant 2 and each of each of the instant real estate.

Therefore, the court below determined that Defendant 2’s status and status at the time of the conclusion of the instant sales contract, and Defendant 2’s personal seal impression affixed to Defendant 1, without examining the circumstances leading to the commission of Defendant 2’s personal seal impression, etc., and the granting of Defendant 2’s power or representation by proxy is not recognized solely for the reasons indicated in its reasoning. In so doing, the court below erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)