[1] Details of duty to restore upon rescission of a contract

[2] In a case where a contract is terminated only due to a cause attributable to either party, whether the obligation to pay the penalty is recognized even if the contract is terminated due to a cause attributable to that party (negative)

[3] Measures to be taken by the court in a case where the liability for damages due to nonperformance is recognized, but it is insufficient to prove the amount of damages

[4] The degree of proof as to the future interest in a claim for damages

[1] Article 548(1) of the Civil Act / [2] Articles 105 and 398(4) of the Civil Act / [3] Article 136 of the Civil Procedure Act, Articles 390 and 393 of the Civil Act / [4] Article 393 of the Civil Act, Article 288 of the Civil Procedure Act

[1] Supreme Court Decision 94Da10061 delivered on March 24, 1995 (Gong1995Sang, 1713) / [2] Supreme Court Decision 99Da49095 delivered on January 18, 200, Supreme Court Decision 2007Da40765 Delivered on October 25, 2007 / [3/4] Supreme Court Decision 91Da2972 delivered on April 28, 1992 (Gong192, 1698) / [3] Supreme Court Decision 81Da1045 delivered on April 13, 1982 (Gong1982, 501) / [3] Supreme Court Decision 85Da245398 delivered on December 22, 1987; Supreme Court Decision 9Da40989 delivered on April 29, 209; Supreme Court Decision 209Da398497 delivered on April 29, 197, 19894)

Comprehensive Construction (Law Firm, Attorneys Hwang Sung-sung et al., Counsel for the defendant-appellant)

Dong-gu Incheon Metropolitan City (Attorney Ba-won, Counsel for defendant-appellant)

Seoul High Court Decision 2005Na74797 decided May 24, 2006

The part of the judgment below on the claim for damages is reversed, and that part of the case is remanded to Seoul High Court. The defendant's appeal is dismissed.

The grounds of appeal are examined.

1. As to the Defendant’s ground of appeal

A. The court below acknowledged the facts as stated in its reasoning after compiling the evidence of its employment. The plaintiff, as the plaintiff, had to raise more project costs due to the reduction of the size of the National Housing Fund, and the defendant could not transfer the ownership of the apartment house to the plaintiff, making it impossible for the plaintiff to implement the rental-sale business as stipulated in the agreement, and the change in such circumstance was impossible to accomplish the basic conditions which the plaintiff originally planned at the time of entering into the concession agreement of this case, and the non-performance of such conditions was deemed to be the principal reason for the defendant. Thus, the concession agreement of this case was cancelled on September 29, 2003 on the ground that the plaintiff's refusal to request the resumption of construction or the change in the method of implementation was not a direct cause for the business of this case, or was merely a process for managing the business after it was impossible to realize the project. The court below rejected the plaintiff's assertion that the project of this case was not implemented due to the plaintiff's cause attributable to the plaintiff.

In light of the relevant legal principles and records, the above fact-finding and judgment of the court below are just, and there is no violation of the rules of evidence or misunderstanding of legal principles as to the cancellation of contract.

B. If a contract is rescinded, the effect thereof retroactively terminates, and the performance under the contractual obligation should be returned as unjust enrichment in order to restore the original state.

In this purport, the court below is just in holding that since the defendant transfers the construction site of this case where the plaintiff performed part of the construction work to the defendant and manages it, the contents of restitution due to the cancellation of the concession agreement of this case should be returned to the plaintiff, and even if the plaintiff and the defendant are in the joint business place of the project of this case, since the plaintiff's status as joint business place is extinguished due to the cancellation of the concession agreement of this case and the defendant has all profits arising from the construction of this case, the plaintiff's recovery of all of its input costs does not bear any risk equivalent to the business owner's share, and there is no error in the misapprehension of legal principles as to the existence or scope of restoration due to the cancellation of contract of this case as alleged in

In addition, in light of the records, the court below is just in holding that the scope of unjust enrichment to be returned by the defendant is the total amount of KRW 1,082,126,012, and there is no violation of the rules of evidence, omission of judgment, etc. as alleged in the grounds of appeal.

2. Plaintiff’s ground of appeal

A. According to the facts and records established by the court below, the plaintiff and the defendant shall pay a security deposit (contract performance guarantee) equivalent to 10% of the private project cost in the concession agreement of this case (Article 6 of the Convention), and the defendant may terminate the designation of the private project operator if the plaintiff is deemed unable to complete construction due to a cause attributable to him or it is deemed impossible to achieve the purpose of the project due to a violation of other terms and conditions of the agreement (Article 8 (1) of the Convention). In this case, the performance guarantee under Article 6 of the Act on Contracts to Which the State is a Party shall apply mutatis mutandis Article 51 of the Act on Contracts to Which the State is a Party. Thus, it can be seen that the cancellation of the designation of the private project operator in the concession agreement of this case refers to the cancellation of the concession contract of this case. Thus, it is reasonable to view that the above performance bond belongs to the penalty for the cancellation of the contract of this case due to the plaintiff's causes attributable to him, and therefore, the contract of penalty shall be presumed to exist in the concession agreement of this case.

However, even if a contract is terminated due to a cause attributable to the defendant who is a party to the contract, and only the contract is terminated due to the cause attributable to the plaintiff who is the other party, the contract is null and void, separate from whether the contract is null and void, and in the case where the contract is rescinded due to a cause attributable to the defendant who is the other party to the contract, the obligation to pay the penalty to the defendant is not recognized (see Supreme Court Decisions 9Da49095 delivered on January 18, 200, 200, 207Da40765 delivered on October 25, 207, 207, etc.). It cannot be interpreted that the contract of this case contains provisions concerning the penalty due to the plaintiff's default, and as a matter of course, it should be acknowledged as a penalty agreement of the same content in the case of the cancellation due to the defendant's default.

Therefore, although some parts of the court below's explanation of its reasoning are inadequate, it is reasonable to reject the plaintiff's argument that the presumption of damages as to the defendant should be recognized under the concept of fairness or the principle of good faith. Therefore, this part of the court below's judgment is not erroneous in the misapprehension of the rules of evidence and misapprehension of legal principles as to the estimate of damages, etc., as alleged in

B. If the liability for damages is recognized due to nonperformance, even if there is insufficient proof as to the amount of damages, the court should actively exercise the right to explanation and urge the proof as to the amount of damages, not solely on the ground of such insufficient proof (see, e.g., Supreme Court Decisions 81Da1045, Apr. 13, 1982; 85Meu2453, Dec. 22, 1987).

In light of the above legal principles and records, it seems reasonable for the court below to have determined that the above amount could not be directly affected by the plaintiff just because the plaintiff's profit was stated in the construction statement attached to the concession agreement of this case as KRW 2.1 billion. However, in this case where the plaintiff suffered losses equivalent to the profit accrued from the plaintiff's successful completion of the project of this case due to the defendant's non-performance of obligation, even though the plaintiff's assertion or proof on the amount of damages is insufficient, the court should not reject the claim for damages of this part by its sole reason, but actively exercise the right of explanation and urge the plaintiff to prove the amount of damages.

Furthermore, in the verification of such future interest, the degree of proof shall be reduced compared to the degree of proof of past facts, and it shall be deemed sufficient to prove the interest with a considerable probability of not losing the rationality and objectivity within the scope not exceeding the proof of specific and reliable profit that can be gained by the creditor (see Supreme Court Decision 91Da29972 delivered on April 28, 1992, etc.).

Nevertheless, the judgment of the court below which rejected the plaintiff's claim for damages on the grounds as stated in its holding is erroneous in the misapprehension of legal principles as to the proof of damages, or in the failure to exhaust all necessary deliberations, which affected the conclusion of the judgment. Therefore,

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for damages is reversed, and that part of the case is remanded to the court below. The defendant's appeal is dismissed. It is so decided as per Disposition by the assent

Justices Kim Young-ran (Presiding Justice)