(a) The nature of the subscription amount for parcelling-out, which shall be paid at the time of application for parcelling-out within the housing site development project zone;

B. Criteria for determining whether the estimated amount of damage compensation is unreasonably excessive

A. Where the applicant for parcelling-out fails to conclude a contract for parcelling-out within the contract period even after the payment of the pre-paid money on the date of the application for parcelling-out is made, the winning shall be invalidated and the subscription amount shall be reverted to the Korea Land Development Corporation, if there is an agreement that the contract for parcelling-out will be reverted to the Korea Land Development Corporation, and such agreement has the nature of the liquidated damages, unless there are special circumstances.

B. Article 389(2) of the Civil Act provides that the term “unfairly excessive cases” means cases where it is deemed 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 of society in light of all the 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 amount of estimated damages, and the transaction practices

A. Articles 398(1) and 398(4) of the Civil Act; Article 398(2) of the Civil Act

A. Supreme Court Decision 89Meu10811 Decided December 12, 1989 (Gong1990, 257) (Gong1990, 642) Decided February 13, 1990 (Gong1990, 642) 91Da2151 Decided May 12, 192 (Gong1992, 1828) (Gong1992, 2976). Supreme Court Decision 92Da36212 Decided January 15, 1993 (Gong193, 702), Supreme Court Decision 92Da41719 Decided April 23, 1993 (Gong193, 19528)

Plaintiff

Korea Land Development Corporation (Law Firm Dong-dong Law Office, Attorneys Kim Jong-jin et al., Counsel for the plaintiff-appellant)

Seoul Civil District Court Decision 93Na46802 delivered on February 16, 1994

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

The grounds of appeal No. 1 are examined.

As determined by the court below, if the plaintiff agreed to receive the pre-contract at the time of the original adjudication on the date of the application for parcelling-out and thereafter make the prize thereafter, and if the contract for parcelling-out is not concluded within the contract period, the prize shall be nullified and the pre-contract for parcelling-out shall be reverted to the defendant, as determined by the court below, and such agreement shall have the nature of the liquidated damages, unless there are special circumstances. Therefore, the court below's decision that the pre-contract amount received between the plaintiff and the defendant shall be determined as the liquidated damages amount, and there is no error of law by misunderstanding the legal principles as to the penalty such as the theory of lawsuit.

In addition, the decision of the party member who is fluent of the theory of the lawsuit (Supreme Court Decision 90Da6880 delivered on April 26, 1991) is inappropriate to be invoked in the instant case, unlike the instant case. There is no reason for the guidance of the argument.

The grounds of appeal No. 2 are examined.

According to Article 389(2) of the Civil Act, where the estimate of the amount of damages is unreasonably excessive, the court may reduce it to a reasonable extent. Here, the term "unfairly excessive cases" means cases where the payment of the estimated amount of damages is deemed to result in the loss of fairness by imposing unfair pressure on the debtor in the position of the economically weak in light of the general social concept, taking into account all circumstances such as the status of the creditor and the debtor, the purpose and content of the contract, the motive behind the expectation of the amount of damages, the ratio of the estimated amount of damages to the amount of debts, the estimated amount of damages, the size of expected damages, and the transaction practices at the time (see Supreme Court Decision 92Da36212 delivered on January 15, 1993)

The court below held that the amount of damages due to the Plaintiff's nonperformance of obligation should be determined as KRW 5,00,000, because the court below's purport of the provision on the subscription amount for parcelling-out under the public notice of parcelling-out and supply guide for parcelling-out, the size of the project for parcelling-out and the public notice of parcelling-out executed by the Defendant, the status of the parties concerned, the concept of general transactions and economic conditions, etc. is recognized to be unduly excessive. Therefore, the court below's above determination is just in accordance with the legal principles as seen earlier, and there is no error in the misapprehension of legal principles, such as the theory of lawsuit.

Therefore, the appeal is dismissed and all 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 Jeong Jong-ho (Presiding Justice)