1. First, we examine the nature of the penalty clause of this case.

In light of the adopted evidence, the court below concluded a contract with the defendant (the party at the time of entering into the occupancy contract of this case but the defendant succeeded to the rights and duties of Taesan-gun on January 1, 1995 under the Act on the Establishment of Facilities in the Urban and Residential Infrastructure, etc. of Gyeonggi-do) on the aggregate of KRW 18,00,00 for the purpose of conducting food manufacturing business within the 199,00 4,00, the total amount of the charges for the above 9,000,000 won for the 196,000,000,000 won for the above 17,000,000 won for the 197,000,0000 won for the above 17,000,000 won for the 194,000,000 won for the above industrial complex, and it is hard to view that the court below concluded a contract with the defendant as the total amount of damages due to the 19,7,0,0,0,084,0,06,0.

2. The following facts are examined as to the effect of the penalty clause of this case.

A. The judgment of the court below

(1) Article 6(1) of the Regulation of Standardized Contracts Act provides that "Any standardized contract which has lost fairness against the principle of trust and good faith shall be null and void." Paragraph (2) provides that "if any of the following is stipulated in the standardized contract, it shall be presumed that the standardized contract concerned has lost fairness." Article 8 provides that "any of such standardized contract shall be unreasonably unfavorable clauses to a customer," and Article 8 provides that "any of such standardized contract clauses unreasonably excessive damages shall be null and void." Thus, the standardized contract clause which imposes unfair excessive damages on the customer shall be presumed to be unfairly unfavorable to the customer, and is contrary to the principle of trust and good faith and thus null and void because the standardized contract clause provides that "any of the above standardized contract clauses shall be unreasonable for the purpose of distributing the pre-sale price to the defendant, which is equivalent to 10% of the pre-sale price of the pre-sale contract, and thus, it shall be deemed that the defendant would not be able to pay damages to the defendant for the purpose of paying the pre-sale price to the plaintiff."

(2) In addition, maintaining the validity of the entire terms and conditions of the contract of this case only with the remaining parts that reduced the liability to compensate for losses to a certain extent without invalidating the whole terms and conditions of this case, it is difficult to allow the enterpriser who uses the terms and conditions of this case by neglecting his duty to make reasonable terms and conditions from the beginning or to consider the contents of unfair terms and conditions in itself as a result of removing the risk of nullification of the whole terms and conditions of the contract of this case, thereby preventing the enterpriser from being widely used, regulating the contents of unfair terms and conditions made by abusing his position in his trade, and protecting the consumers and establishing a sound trade order. On the premise that the whole terms and conditions of this case are valid, reducing the estimated amount of compensation for damages to the extent of applying Article 398(2) of the Civil Act on the premise that the whole terms and conditions of this case is valid is not subject to an unreasonably excessive liability to compensate for damages, and thus, it is also difficult to bring about any inconsistency in this case.

(3) If so, the defendant's act of reverting to the defendant the subscription money for the above application for parcelling-out based on the contract clause of this case which is null and void, without any legal ground, gains profit equivalent to the above subscription money for parcelling-out, while the plaintiff suffered losses equivalent to the same amount, so the defendant is obligated to return the entire subscription money for parcelling-out to the plaintiff as unjust

B. Determination of party members

(1) However, as the court below acknowledged, the above industrial complex development project is a project which is developed according to a long-term and comprehensive plan to facilitate the smooth supply of land for a factory, appropriate decentralization of industry, and to revitalize the regional economy. The development project cost, such as land compensation, infrastructure construction cost, and management cost of public facilities, is 116,742,340 square meters or more, and the expected expected amount of the original project amount is 16,000,000 won or more (the cost of expenses up to the beginning of 1994 is 127,00,000,000 won or more) and is planned to appropriate most of the project cost as the tenant's charges (the purchase price for a factory site). Since 126 enterprises including the plaintiff, etc. have moved in in the middle of the first two years after the occupancy contract, as in the case of the plaintiff in this case, it is difficult for the previous tenant to suffer losses due to the cancellation of the new contract and the cancellation of the new contract.

(2) In addition, the court below's prior designation of the preliminary winner in comparison with the above cases may reduce damages by allowing the cancellation to occupy the preliminary winner immediately, but even according to the approval of the court below (section 4 of the judgment of the court below), there were not completed a contract for occupancy of all lots of industrial complex at the time the plaintiff entered into a contract for occupancy, and there were a large number of unsold lands (limited to 166 parcels of total land), and it is extremely difficult to appoint the preliminary tenant in advance at the time the contract for occupancy is insufficient, and it is sufficiently sufficient to determine the preliminary tenant in advance in light of the nature of the contract for occupancy of this case as mentioned above, its payment period, amount, development period, and circumstances where the contractee can waive occupancy even after a long period of time.

(3) Meanwhile, the purpose of the Regulation of Standardized Contracts Act is to prevent an enterpriser from preparing and using terms and conditions with unfair terms and conditions by abusing his position in trade, to regulate unfair terms and conditions, thereby establishing a sound trade order, thereby protecting consumers and promoting the balanced improvement of the people's lives. The purpose of the Industrial Complex Management Act is to determine basic matters concerning the management of industrial complexes and operate them reasonably, thereby contributing to the sound development of the national economy. Accordingly, there is no reason to regard the penalty provision in this case as being contrary to the purpose of each Act

(4) Ultimately, the penalty clause of this case differs from the above 93Da30082 case cited by the court below, and in light of various circumstances such as the status of the party, the purpose and contents of the occupancy contract of this case, the motive and background leading up to liquidated damages, the ratio of liquidated damages to liquidated damages, the expected amount of damages, and other transaction practices, it cannot be deemed that the penalty clause of this case imposes an unfairly excessive liability on the customer including the plaintiff, or constitutes a standardized contract clause which loses fairness contrary to the principle of good faith.

(5) Nevertheless, the court below's determination that the penalty clause of this case was null and void because it imposes unfairly excessive liability on customers, which constitutes a standardized contract which has lost fairness in violation of the principle of trust and good faith cannot be deemed to have committed an unlawful act that affected the conclusion of the judgment by misapprehending the legal principles on the regulation and invalidation of standardized contract

3. Therefore, without examining the remaining grounds of appeal, the part against the defendant among the judgment below against the defendant is reversed, and this part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Im-soo (Presiding Justice)