[1] Nature of sales contract for factory sites under the former Industrial Sites and Development Act

[2] Whether the application of the Regulation of Standardized Contracts Act to the terms and conditions of the sale contract for factory sites under the former Industrial Sites and Development Act is excluded (negative)

[3] Whether Article 548(2) of the Civil Act applies to the rescission of a contract agreement (negative)

[4] Whether the terms and conditions of the contract in the contract for the sale of factory site, which excludes the payment of interest on the money to be returned at the time of cancellation of the contract, are invalid in violation

[1] According to the provisions of Article 38 of the former Industrial Sites and Development Act (amended by Act No. 4574 of Aug. 5, 1993) and Articles 39 and 40 of the former Enforcement Decree of the Industrial Sites and Development Act (amended by Presidential Decree No. 14429 of Dec. 16, 1994), even if a project operator is regulated by public law, such as qualification requirements for persons subject to parcelling-out, timing, method and conditions of parcelling-out, determination of parcelling-out price, etc., after submitting a plan to approve authority and an industrial complex administrator, after submitting it to the approved authority and the industrial complex administrator, the sales contract for factory sites by the project operator under the relevant Act does not differ from sale and purchase between private parties.

[2] Article 30 (1) of the Regulation of Standardized Contracts Act provides that "this Act shall not apply where the standardized contract concerns contracts which belong to the category of non-profit business as prescribed by the Presidential Decree such as Part III of the Commercial Act, the Labor Standards Act and other provisions of the Act on the Regulation of Standardized Contracts." Article 30 (3) of the same Act provides that "if there are special provisions in other Acts with respect to the standardized contract in a particular business area, the provisions of this Act shall prevail." However, the Enforcement Decree of the same Act does not provide for the field of non-profit business where the application of the Regulation of Standardized Contracts Act is excluded, and there is no provision regulating the standardized contract in the sale contract for factory sites under the former Industrial Sites and Development Act,

[3] The term "agreement cancellation or rescission contract" means a new contract, regardless of whether the parties to the contract have the right of rescission or not, which stipulates that both parties to the contract shall terminate the validity of the existing contract by agreement and return to the same state as the one for which the contract had not been concluded previously. The effect of the agreement is determined by the content of the agreement, and the provisions of Article 548 (2) of the Civil Code concerning the cancellation are not applicable. Thus, unless there is an agreement between the parties, the parties are obliged to pay interest from the date of receipt of the money

[4] According to Article 548(2) of the Civil Code, which is a discretionary law, the interest shall be imposed on the money to be returned when a contract is terminated, and Article 19(1) and (2) of the Ordinance on the Creation and Sale of Local Industrial Complex of Jeollabuk-do, where a business operator enforced, provides that when an industrial site sales contract is cancelled due to a cause attributable to the contractual party, payment shall be returned by adding legal interest during the period to the amount of payment excluding the contract deposit paid if the contract is cancelled due to a cause attributable to the contractual party. In light of the above, the part excluding the payment of interest on the money to be returned among the provisions of Article 16(5) of the Act on the Regulation of Terms and Conditions is an unreasonably mitigated provision that reduces the duty of restoration to the business operator

[1] Article 563 of the Civil Code, Article 38 of the former Industrial Sites and Development Act (amended by Act No. 4574 of Aug. 5, 1993), Articles 39 and 40 of the former Enforcement Decree of the Industrial Sites and Development Act (amended by Presidential Decree No. 14429 of Dec. 16, 1994) / [2] Article 30 of the Regulation of Standardized Contracts Act / [3] Article 548 (2) of the Civil Code / [4] Article 9 subparagraph 4 of the Regulation of Standardized Contracts Act, Article 548 (2) of the Civil Code

[1] Supreme Court Decision 90Da8053 delivered on January 11, 1991 (Gong1991, 719), Supreme Court Decision 93Da46742 delivered on August 23, 1994 (Gong1994Ha, 2497) / [3] Supreme Court Decision 4293No275 delivered on October 6, 1960 (No8, 157), Supreme Court Decision 79Da1455 delivered on October 30, 197 (Gong1979, 12308), Supreme Court Decision 92Da4130, 4147 delivered on June 23, 192 (Gong1992, 2252) / [3] Supreme Court Decision 90Da149439 delivered on September 13, 1994 (Gong194, 194).

Co., Ltd. (Attorney Lee Im-soo, Counsel for the plaintiff-appellant)

Jeollabuk-do (Attorney Kim Tae-tae, Counsel for the plaintiff-appellant)

Gwangju High Court Decision 94Na7170 delivered on February 15, 1995

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. The grounds of appeal by the defendant's attorney are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. As to the first ground for appeal

According to the provisions of Article 38 of the Industrial Sites and Development Act and Articles 39 and 40 of the Enforcement Decree of the same Act, a project executor shall prepare a sale plan on qualifications of persons subject to sale, timing, method and conditions of sale, determination of sale price, etc., and submit it to the approved authority and the administrative authority of industrial complex, and submit it to the approved authority and the administrative authority of industrial complex, and even if there are some regulations under the public law, the sale contract of factory sites by the project executor under the same

In addition, Article 30 (1) of the Regulation of Standardized Contracts Act (hereinafter referred to as the "Terms and Conditions Regulation Act") provides that "this Act shall not apply where the terms and conditions are related to contracts that belong to the category of non-profit business as prescribed by the Presidential Decree such as Part III of the Commercial Act, the Labor Standards Act and other non-profit business as prescribed by the Presidential Decree." Article 30 (3) of the same Act provides that "if there are special provisions in other Acts with respect to the terms and conditions of a specific business area, the provisions of this Act shall prevail." However, the Enforcement Decree of the same Act does not provide for the non-profit business area where the application of the above Act is excluded, and there is no provision regulating the terms and conditions of the sale contract for factory sites

The judgment of the court below to the same purport is just, and there is no reason to discuss since the judgment of the court below does not contain any error like the theory of lawsuit.

B. Ground of appeal No. 3

The theory of lawsuit is based on the premise that the contract for the sale of the factory site in this case was cancelled by agreement, and according to the reasoning of the judgment below, it cannot be deemed that the court below decided that the contract for the sale of the factory site in this

C. Regarding ground of appeal No. 4

According to the reasoning of the judgment below, the court below asserted that the plaintiff is to cancel or cancel by agreement between the plaintiff and the plaintiff due to the reasons attributable to the defendant. However, the effect of the termination of the contract is the same as the case of the cancellation due to any reasons attributable to either of the parties, and the plaintiff's claim of this case is premised on the cancellation of each of the above sales contract, and therefore, it is no further examination as to this point. The court below held that the contract for the sale of the land of this case is null and void since the provision "no interest shall be added to the amount to be returned by the defendant to the plaintiff" in the latter part of Article 16 (5) of the contract for the sale of the land of this case is invalid, the defendant is liable to pay interest at the rate of civil law from the date of receipt of the contract with the plaintiff as to 2,212,091,89

However, if a contract is terminated by unilateral declaration of intent of the party who has the right to rescission retroactively, the performance already performed under the contractual obligation must be returned as unjust enrichment for restitution. Such duty to restore is naturally borne by the party as well as the party who has rescinded the contract. If the contract has been lawfully rescinded, regardless of who is attributable to the party, the party shall pay interest from the date on which he has received under the provisions of Article 548(2) of the Civil Act in return of the money already paid under the contract. However, the contract for rescission or rescission is a new contract with the content that, regardless of the existence of the right to rescission, the effect of the existing contract is determined by the content of the agreement, and the provisions of Article 548(2) of the Civil Act concerning the rescission are not applicable, so long as there is no agreement between the parties to the contract, the party shall not be obliged to pay interest from the date on which the money already received due to the rescission of agreement was made (see Supreme Court Decision 197Da15405, May 15, 1997).

Nevertheless, the court below held that the defendant is liable to pay interest on the above amount to the plaintiff pursuant to the provisions of Article 548 (2) of the Civil Act, just on the grounds stated in its reasoning. The court below erred by misapprehending the legal principles on rescission of contract and failing to satisfy the grounds for its judgment.

However, according to the records, the plaintiff did not pay the remaining price after the lapse of December 31, 1992, which is the remaining payment date of the contract for the sale of the factory site in this case, and if it is impossible to extend the remaining payment date to December 29, 1992, the plaintiff unilaterally notified the defendant on December 31, 1993 that the contract for the sale in this case will be cancelled, and the defendant notified that he would refuse the plaintiff's request on February 8, 1993 and cancel the contract for the sale in this case. Thus, if the facts are identical, the contract for the sale in this case was lawfully cancelled by the defendant's declaration of intention of cancellation on the ground that the plaintiff's cause exists, and therefore, the defendant is obligated to return the interest on the money received under Article 548 (2) of the Civil Code, and therefore the above illegality of the judgment of the court below does not affect the conclusion of the judgment.

D. Regarding ground of appeal No. 2

According to the provisions of the Act on the Regulation of Terms and Conditions, a standardized contract which has lost fairness in violation of the principle of good faith is null and void (Article 6(1)), and a clause which unreasonably unfavorable to customers is presumed to lose fairness (Article 6(2)1), and a clause which unreasonably reduces the obligation of a business operator to restore or compensate for damages due to the cancellation or termination of a contract (Article 9 subparag. 4). According to the provisions of Article 548(2) of the Civil Act, which is a discretionary law, the interest shall be paid on the money to be returned when a contract is terminated. According to the records, Article 19(1) and (2) of the Ordinance on the Creation and Sale of Local Industrial Complex in Jeollabuk-do, which is enforced by the defendant, provides that the defendant should return the industrial land after the cancellation of a contract due to a cause attributable to the contracting party to the contract by adding legal interest to the amount excluding the paid contract bond. In light of the provisions of Article 16(5) of the Act on the Regulation of Terms and Conditions, the Contract in this case is null and void.

The judgment of the court below to the same purport is just, and there is no reason to interpret the legal principles as in the judgment of the court below.

E. Ground of appeal No. 5

Examining the reasoning of the judgment below, it cannot be deemed that the judgment of the court below was made on the invalidity or invalidity of the provisions of Article 19 (2) of the Ordinance on the Creation and Sale of Local Industrial Complex in Jeollabuk-do, which the defendant is enforced, and there

2. Therefore, the 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)