B. Whether the court should reduce the penalty if the agreement is excessive

(b)In the case of “A”, unless there are special circumstances, the agreement for breach of contract between the parties presumed to be liquidated damages, and thus, the agreed amount that one of the parties has paid to the other party shall naturally be deemed to be attributed to the other party who has rescinded the agreement on the ground of the other party’s default. However, in such a case, immediately should not be readily denied the party’s right to claim the return of the agreed amount, in full view of all the circumstances, including the parties’ status, purpose and content of the agreement, the motive behind the contract, the actual amount of damages and the estimated amount of damages, comparison with the transaction practices and economic conditions at the time of the agreement, if the agreement exceeds the permissible scope of the ordinary people’s payment, the excess limit shall be deemed to be unfairly

The case is remanded to Busan High Court.

1. According to the reasoning of the judgment below, on May 6, 191, the defendant and the non-party Hanyang Co., Ltd. (hereinafter the "non-party Co., Ltd.") agreed to the non-party Co., Ltd. to take responsibility for the purchase of the new teachers' site and to perform all construction works to construct the new teachers on the ground in order to transfer the school's decision, and as a result, the defendant, along with the above school's transfer to the non-party Co., Ltd., under related Acts and subordinate statutes, takes procedures such as changing the use of the old teachers' site, which is fundamental property for education, and transfer it to the non-party Co., Ltd., and make it available for the new apartment construction site to use it for the above construction site. However, the court below determined in advance the basic matters concerning the above school's transfer promotion plan in order to settle the above construction price and the payment of the purchase price of the new teachers' land later at the preparation stage, and determined that the non-party Co., Ltd.'s expenses will not be paid the above construction site.

However, even according to the reasoning of the judgment below, the instant contract cannot be deemed as a typical sales contract for the old building site, which is a fundamental property for education of the defendant corporation, and several contents of the contract including the transfer of the old building site and the purchase of the new building site and the construction of the new building. However, since it is clear that it is a mixedless contract for the old building site, the legal relationship arising from the instant contract cannot be determined by the transfer of the old building site separately from the transfer of the old building site, the judgment of the court below based on the premise that the transfer of the old building site was not included in the transfer of the old building site is not an erroneous construction of the terms of the contract between the parties. The part pointing this out in

2. As long as the transfer of the old school site, which is an fundamental property for education, is included in the contract of this case between the defendant corporation and the non-party company, if the transfer of the old school site was not permitted by the competent agency, the part concerning the transfer of the old school site under the contract of this case is naturally null and void in violation of Article 28 of the Private School Act. Thus, the part concerning the transfer of the old school site under the contract is not deemed null and void, and it is not deemed null and void as the judgment of the court below, and it is no longer possible to determine whether the remaining parts can be treated as valid even if the above agreement was made between the parties, or not with the exception of the null and void part. However, the decision of the court below cannot be deemed null and void in its determination on the premise that the transfer of the old school site was not included in the transfer of the old school site under the contract of this case.

3. In addition, the court below asserted that the agreement was lawfully rescinded or cancelled due to the impossibility of performance due to the reasons attributable to the defendant, and that the defendant is obligated to return 500 million won of the above agreement already received from the non-party company as its reinstatement, as the grounds for revocation, the plaintiff is bound to return the above agreement amount to the non-party company. However, there is no evidence to prove that the plaintiff's failure to perform the defendant's obligations under the above agreement was caused to the non-party's failure due to the reasons attributable to the defendant, because the apartment cannot be constructed on the above building site, and there is no evidence to prove that the defendant's failure to pay 500 million won of the above incidental expense agreement to the non-party company after the conclusion of the above agreement was made and the non-party company failed to pay it until the agreed date, and therefore, it is recognized that the defendant cancelled the above agreement, and there is no evidence to prove that the above agreement was rescinded between the above parties.

However, even if the contract of this case is valid as the judgment of the court below, and the above agreement between the non-party company and the defendant is deemed legally rescinded by the defendant due to delay in performance, etc. due to the reasons attributable to the non-party company, if the contract is terminated retroactively, the payment already performed pursuant to the contract's obligation should be returned to the non-party company as unjust enrichment for restitution. Such duty of restitution is naturally borne by the party to the rescission and the person who has cancelled the contract. Thus, in this case, if the above agreement between the parties is lawfully rescinded, regardless of who is attributable to the party, the original defendant shall be liable to return the above contract amount, five hundred million won already received pursuant to the contract to the non-party company,

However, in such a case, if it is deemed that there exists an agreement between the parties to a penalty, such agreement for breach of contract is presumed to be liquidated damages, barring special circumstances, so the above agreement amounting to KRW 500 million paid by the non-party company to the defendant can be deemed to be naturally reverted to the defendant who has cancelled the agreement on the ground of the non-party company's non-performance of obligation. However, even in such a case, immediately, the non-party company's right to claim the return of the agreed amount shall not be readily denied entirely, and in such a case, the contract party's status, purpose and content, the motive in which the contract was scheduled to compensate for damages, comparison of actual amount of damages and the estimated amount of damages, transaction practices at the time of the transaction, economic condition, etc., if it exceeds the extent that the general public can enjoy, the duty to return the agreed amount shall be acknowledged by deeming it unfairly excessive to the extent of excess (see

Therefore, the court below should have judged the existence or specific scope of the duty to return the agreed amount after examining whether the contract in this case was rescinded due to the delay of the duty on the part of the non-party company, not immediately deny the duty to return the above agreed amount to the non-party company, but further whether there was a special agreement between the above parties to regard the above agreed amount as a penalty, and if there was a special agreement, whether the agreed amount was unfairly excessive as the estimated amount for damages, or not. The court below neglected the examination or did not err in the misapprehension of legal principles as to restitution due to the rescission of the contract. The part of the grounds for appeal pointing this out is with merit.

3. Therefore, the judgment of the court below is reversed and 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 Park Jong-chul (Presiding Justice)