[공사계약보증금등반환][공1999.2.1.(75),228]
[1] The criteria for determining whether the estimated amount of damages is unreasonably excessive, and the point at which the determination was based
[2] The scope of duty to restore due to termination of contract
[1] Article 398 (2) of the Civil Code provides that the court may reduce the estimated amount of compensation for damages in an unreasonably excessive case. Here, "unfairly excessive case" means cases where the payment of the estimated amount of compensation for damages is deemed to result in the loss of fairness by imposing unfair pressure on the debtor in the position of the economically weak in light of the general social concept, taking into account all the circumstances such as the status of the creditor and the debtor, the purpose and content of the contract, the motive behind the liquidated amount of compensation for damages, the ratio of the 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 order to determine whether the estimated amount of compensation for damages is unreasonably excessive or not, or the scope of reasonable reduction is to determine whether the estimated amount of compensation for damages is unfairly excessive according to the above provision, the court shall comprehensively consider all the above circumstances that occurred between them as of the
[2] The main text of Article 548(1) of the Civil Code stipulating the duty to restore as the effect of rescission of contract has the nature of a special provision on unjust enrichment. Thus, the scope of return of profit is the whole amount of profit received unless there is a special reason, regardless of whether there exists a benefit or not, good faith, or bad faith.
[1] Article 398 (2) of the Civil Code / [2] Article 548 (1) of the Civil Code
[1] Supreme Court Decision 95Da33658 delivered on November 10, 1995 (Gong1995Ha, 3912), Supreme Court Decision 95Da42393 delivered on February 27, 1996 (Gong1996Sang, 1100), Supreme Court Decision 95Da37094 delivered on June 10, 1997 (Gong1997Ha, 2123), Supreme Court Decision 97Da15371 delivered on July 25, 1997 (Gong197Ha, 2698) / [2] Supreme Court Decision 96Da47586 delivered on December 9, 197 (Gong198, 213)
Mine Construction Co., Ltd. (Law Firm Taesung General Law Office, Attorneys Park Jung-soo et al., Counsel for the plaintiff-appellant)
Masung Housing Co., Ltd. (Attorney Park Sang-hoon, Counsel for the defendant-appellant)
Busan High Court Decision 96Na12801 delivered on July 9, 1998
Each appeal is dismissed. The costs of appeal are assessed against each appellant.
1. The grounds of appeal No. 1 by the Plaintiff’s attorney and the grounds of appeal by the Defendant’s attorney are examined together.
Article 398(2) of the Civil Act provides that the court may reduce the estimated amount of compensation in an unreasonably excessive case. Here, "unfairly excessive case" means cases where the payment of the estimated amount of compensation 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, taking into account all the circumstances such as the status of the creditor and the debtor, the purpose and content of the contract, the motive scheduled for the amount of compensation, the ratio of estimated amount of compensation, the estimated amount of compensation for damages to the amount of debts, the estimated amount of damages, the size of expected losses, and the transaction practices at the time, etc. In addition, in order to determine whether the estimated amount of compensation for damages is unreasonably excessive or to determine whether the estimated amount of compensation for damages is unfairly excessive or the scope of reasonable reduction is to be determined specifically, the court shall take into account all the above circumstances arising between them as at the time of the closing of the fact-finding court as a whole (refer to the above judgment).
In light of the above legal principles and records, the court below's decision that the estimated amount of damages of this case was unfairly excessive and reduced to KRW 500 million is just and it cannot be said that there are no errors such as the theory of lawsuit. All arguments are without merit.
2. We examine the second ground for appeal by the Plaintiff’s attorney.
The main text of Article 548(1) of the Civil Act stipulating the duty to restore as the effect of rescission of contract has the nature of a special provision on unjust enrichment. Therefore, the scope of return of profit is the whole amount of profit received unless there is good faith or bad faith (see Supreme Court Decision 96Da47586 delivered on December 9, 197).
According to the reasoning of the judgment below, the court below rejected the plaintiff's claim for return on the ground that the defendant did not gain any profit even though the plaintiff's design cost, etc. claimed by the plaintiff incurred a loss equivalent to the amount of the expenses by the plaintiff's disbursement. In light of the above legal principles and records, the judgment of the court below is justified, and there is no error of law such as the theory of lawsuit.
3. Therefore, each appeal shall be dismissed, and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.
Justices Shin Sung-sung (Presiding Justice)