[1] Whether the standardized contract clause is invalid because it violates the Act on the Regulation of Terms and Conditions in a case where there is no estimate clause for the seller's damages, while there is no estimate clause for the buyer's damages (negative)

[2] The case holding that the standardized contract clause cannot be deemed unfairly disadvantageous to the buyer or unfair in violation of the principle of good faith, in a case where there is no clause of liquidated damages for the buyer, while there is no clause of liquidated damages for the buyer when the contract was rescinded

[1] In the event that there is no estimate clause of the amount of damages for a seller at the time of cancellation of a sales contract under the terms and conditions, but there is no estimate clause of the amount of damages for a buyer, the said clause cannot be deemed null and void as it violates the Regulation of Standardized Contracts Act.

[2] The case holding that the standardized contract clause is unfairly unfavorable to the buyer or it is unfair against the principle of good faith in a case where there is no clause of liquidated damages for the buyer, while there is no clause of liquidated damages for the buyer when the contract is rescinded

[1] Articles 398 and 551 of the Civil Act, Articles 6, 8, and 9 of the Regulation of Standardized Contracts Act / [2] Articles 398 and 551 of the Civil Act, Articles 6, 8, and 9 of the Regulation of Standardized Contracts Act

[1] Supreme Court Decision 98Da33697 delivered on December 23, 1998

Plaintiff 1 and five others (Attorney Yang Chang-yang, Counsel for the plaintiff-appellant)

Korea Land Corporation (Attorney Cho Jae-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 99Na27882, 27899 delivered on August 18, 1999

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below held that Article 15 (5) of the Clause of this case provides that "if this contract has been terminated, the seller returns the amount after deducting the contract deposit from the purchase price received from the buyer, and the contract deposit paid by the buyer to the seller shall be attributed to the seller as a matter of course, as a penalty," the contract deposit paid by the buyer to the seller shall be attributed to the seller. In the event the seller cancels the contract due to the buyer's cause attributable to the buyer, the clause purports to stipulate the method of restitution and the obligation of the buyer to compensate for the damages incurred therefrom, and the ownership of the contract deposit thereby has the nature of the expectation of the amount of compensation in preparation for the liquidation of the contract relationship. On the other hand, Article 15 (6) of the Clause of this case provides that "if the contract has been terminated due to the cause attributable to the seller, the seller shall return the total amount of the contract deposit received from the buyer and the legal interest accrued therefrom from the date of the receipt of the purchase price to the time of the return."

2. According to the reasoning of the judgment below, with regard to the plaintiffs' assertion that the standardized contract clause on the scheduled amount of damages is invalid because it imposes unfairly excessive liability on the customer, and thus it is in violation of the Regulation of Standardized Contracts Act, the court below held that it is difficult to determine that the standardized contract clause on the scheduled amount of damages is in violation of the Regulation of Standardized Contracts Act and it is difficult to impose unfairly excessive liability on the buyer, who is the customer. In light of the records, the judgment of the court below is just and it is not erroneous in the misapprehension of legal principles of the Regulation of Standardized Contracts Act, and the amount of the down payment is common, and in the contract of this case where the housing is supplied through competitive bidding (in this case, there is sanctions against the buyer, such as deprivation of the opportunity for the application for parcelling-out for a certain period after the conclusion of the contract in this case).

3. Meanwhile, in interpreting Article 15(5) and (6) of the Terms and Conditions of this case as above, there is no provision in the estimate of damages for the buyer, but there is no provision in the estimate of damages for the buyer. As such, the said provision cannot be deemed null and void because it violated the Regulation of Terms and Conditions Act on the sole basis of the presumption of damages for the buyer.

In other words, the provision concerning the determination of the amount of damages in this case is merely based on the provisions of the discretionary law which is legally allowed (Article 398 of the Civil Act) and does not deviate from the discretionary law, and even if there is no proof about the amount of damages, there is an interest that can claim the amount of damages due to the absence of proof about the amount of damages, while there is any disadvantage that can not separately claim the excessive portion even if the amount of damages are more than the estimated amount of damages for creditors, unless otherwise stipulated otherwise. In this case, the buyer in this case can seek the full amount of damages by proving the actual amount of damages due to the absence of the standardized contract of the estimate for the amount of damages. In this case, unless there is a special circumstance, the seller can not easily expect his default, and in light of the object of the transaction in this case and type of transaction in this case and the extent of the actual importance of the clause on the estimate of damages to the customer, and even if there is no provision on the estimate of damages to the customer, it cannot be deemed that there is no error in the misapprehension of the principle of trust and good faith.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Han-gu (Presiding Justice)