Of the part against the Defendant (Counterclaim) of the lower judgment, the construction cost of KRW 108,776,490 and this is related thereto.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal by the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”)

A. Since the agreement on penalty for breach of contract is presumed to be an estimate of the amount of damages under Article 398(4) of the Civil Act, special circumstances should be proved in order to interpret the penalty as a penalty for breach of contract.

(1) Article 398(2) of the Civil Act provides that “Where the estimated amount of compensation for damage is unreasonable and excessive, the court may reduce the estimated amount of compensation for damage to the extent that the estimated amount of compensation for damage is unreasonable.”

Here, “unfairly excessive cases” refers to cases where it is acknowledged that the payment of the estimated amount would result in the loss of fairness by imposing unfair pressure on the debtor who is in the position of the economically weak in light of the general social concept, in light of all circumstances such as the individual position of the creditor and the debtor, purpose and content of the contract, the motive scheduled for the amount of damages, the ratio of estimated amount of damages to the amount of debts, the expected amount of damages, and the transaction practices at that time.

In a case where determining whether the estimated amount of compensation for damages is unreasonably excessive or the scope of reasonable reduction thereof according to the application of the above provisions, the court should comprehensively consider all the above circumstances that occurred between the court and the time of closing argument in the fact-finding court.

(1) The lower court’s finding of facts as to the grounds for reduction or determination of the ratio thereof is a fact-finding authority, unless it is deemed that the lower court’s finding of facts as to the grounds for reduction or determination of the ratio is clearly unreasonable in light of the principle of equity.

(See Supreme Court Decision 2009Da94322 Decided March 11, 2010, etc.). B.