The nature of the contract of penalty and whether the claim for actual damages is made (negative)

In case where the purchaser has agreed to the effect that he will invalidate the contract if the purchaser has placed an agreement on the amount received as the down payment, and that the seller will refund the double amount if the seller has violated the contract, the agreement of the penalty shall be presumed to be the scheduled compensation for damages as stipulated in Article 398(4) of the Civil Act. In addition, in case where there exists such agreement, the obligee may claim the estimated amount not to prove the actual amount of damages if the obligor has failed to perform the obligation, while the obligee may not claim the excessive amount even

Article 398(4) of the Civil Act

Supreme Court Decision 67Da737 Decided June 22, 1965, May 10, 1988

Attorney Kang-won et al., Counsel for the defendant-appellant in charge of Dongban General Law Firm and four others

Kim Young-young, Counsel for the defendant-appellant-appellant

Gwangju District Court Decision 88Na2355 delivered on August 25, 1989

The appeal application is dismissed.

The ground of appeal by the plaintiff's attorney is examined.

In a case where the buyer has agreed to the effect that he will invalidate the contract if the buyer has placed an agreement on the amount received as the down payment, and that the seller will refund the double amount if the seller has violated the contract, the agreement of the penalty is presumed to be the scheduled compensation for damages as stipulated in Article 398(4) of the Civil Act. In addition, in a case where there is such agreement, the creditor can not claim the estimated amount without proving the actual amount of damages if the contract is not performed by the debtor, while the creditor can not claim the excessive amount even if the actual amount of damages exceeds the estimated amount of damages (see Supreme Court Decision 87Meu3101 delivered on May 10, 198).

In the conclusion of the instant trade contract between the Plaintiff and the Defendant, the lower court determined the fact that the seller made an agreement to pay the down payment received by the seller by selling the down payment at the time when the seller sells the down payment, and that the buyer loses the down payment and makes it an income of the seller’s income.” In the same purport, it is reasonable to conclude that it was estimated to compensate for the damages, and to reject the claim for damages of this case, which is sought in excess of the said estimated amount on the grounds of nonperformance of obligation (unperformanceability), and there is no misapprehension of legal principles as argued, and even if the Plaintiff, a creditor, like the written argument, deposited the intermediate payment and the late payment, it does

In addition, the judgment of the court below cannot find that the application for permission of appeal contains important matters concerning the interpretation of statutes, and it is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Chang-chul (Presiding Justice)