A. Whether the contract is deemed to have been agreed upon in addition to the contract deposit in a building sales contract where the contract is rescinded due to a cause attributable to the buyer, if the buyer agrees to pay the occupancy and use fee due to the occupancy and use of the building (affirmative), and whether the agreement on the payment of occupancy and use fee is valid (affirmative);

(b) A case where the liquidated damages cannot be deemed to be unreasonably excessive; and

A. In addition to the receipt of down payment in a sales contract for a building, if the contract is terminated due to a cause attributable to the buyer, not only the down payment but also the aforementioned occupancy user fee shall be deemed to have been agreed to pay a certain percentage of the purchase price as the occupancy user fee according to the occupancy period from the time the buyer occupied and used the building. The occupancy user fee shall also be deemed to have been agreed to pay the occupancy user fee for the nonperformance of the sales contract. Although the contract is ordinarily entered into in a special form of sales contract where only the down payment is received with penalty, it shall not be deemed that the contract by the method of paying the occupancy user fee

(b) The case holding that the liquidated damages cannot be deemed to have been unfairly excessive in light of all the circumstances, including the purpose and contents of the sales contract, the motive in which the amount of damages is scheduled, the ratio of the estimated amount of the sales price to the estimated amount of the sales price, the time of cancellation of the contract, the expected amount of damages

Article 398 of the Civil Act

Busan Bank, Inc.

Defendant 1 and two Defendants (Attorney Kim Dong-ho, Counsel for the defendant-appellant)

Busan High Court Decision 91Na1735 delivered on May 1, 1992

The appeal is dismissed.

The costs of appeal shall be assessed against the defendants.

The grounds of appeal are examined.

1. The facts duly established by the court below are as follows.

The defendant 1 entered into a sales contract with the plaintiff 1 to purchase 1.560 million won as stated in the judgment of December 19, 1986. The main contents of the contract are (1) 156 million won per contract date, and the remainder is 180 million won every 18th day from June 18, 1987 to December 18, 1991. 10 million won every 18th day from the above 196th day from the above 196th day from the above 198. 2nd day from the above 196th day from the above 2nd day to the above 18th day from the above 196th day from the above 196th day from the above 196th day from the date of installment payment, and the above 19th day from the above 2nd day to the 18th day from the above 19th day from the date of installment payment to the plaintiff's 16th day from the above 16th day of installment payment.

2. We examine Defendant 1’s grounds of appeal.

On the first ground for appeal

The court below rejected the above defendant's assertion that even if the sales contract was cancelled due to the reasons attributable to the above defendant in this case, the damages caused by the violation of the contract will be compensated for by forfeiture of contract bond, but the agreement to pay the occupancy fee should eventually be denied by double compensation and its validity should be denied.

In this case, not only the down payment but also the occupancy user fee of the above contents shall be deemed to have been agreed upon as a penalty for nonperformance of the contract. Thus, the contract for penalty by the method of paying the occupancy user fee, which is calculated in consideration of the period, etc. until the cancellation of the contract where the contract is terminated due to the buyer's breach of contract as in the special form of sales contract as in this case.

However, barring special circumstances, the penalty shall be deemed to have the nature of the liquidated damages (Article 398(4) of the Civil Act), and where the estimated amount of compensation for such damages is unfairly excessive, the court may reduce it (Article 398(2) of the Civil Act). However, in light of all the circumstances, such as the purpose and contents of the sales contract in this case, the motive behind the liquidated damages, the ratio of the estimated amount of compensation for damages, the timing of the contract cancellation, the anticipated amount of the estimated amount of the sales proceeds, the expected amount of damages, the size of the expected amount of the contract, and the transaction practices at the time, the liquidated damages shall not be deemed to have been unfairly excessive (the calculation of the occupancy fees by the time of the contract termination is apparent in the calculation of the above amount exceeding 280,448,465 won). However, even if the plaintiff does not exercise rights to the remaining parts, it can be seen in the record).

This paper ultimately leads to the absence of reason.

On the second ground for appeal

The court below rejected the above defendant's assertion that the above agreement is null and void as an unfair act, on the ground that there is no evidence to acknowledge that the above agreement was caused by the defendant's rashness, experience, and pathy. In light of the records, the above disposition of the court below is proper and there is no error in the misapprehension of legal principles as to the unfair legal act pointing this out. The argument is without merit. The argument is without merit.

On the third ground for appeal

The court below rejected each of the above arguments on the ground that the above defendant's assertion, namely, (1) the defendant agreed not to claim the occupancy fee from the plaintiff bank's practitioners, and that the above defendant trusted it and concluded the above sales contract, and thus, the above defendant violated the above promise, and thus, the claim for the occupancy fee of this case violates the principle of good faith or the prohibition of abuse of rights. (2) Since the above defendant's three market prices in the above building amount to KRW 1.5 billion and it is clear that the utility would be significantly reduced due to the name of the building, the plaintiff's filing of a request for the surrender of the building on the sole ground that the plaintiff is the owner of the building constitutes an abuse of rights, the above exercise of rights does not violate the principle of good faith or constitutes abuse of rights. In light of the records, the judgment of the court below is correct and there is no error of law by misunderstanding the legal principles on the good faith and abuse of rights such as theory.

On the fourth ground

As duly determined by the court below, the damages for delay due to the delay in payment of the installment at the time of the above sales contract can be deducted from the installment payment already received by the plaintiff, and if the above sales contract was agreed to prevent the purchaser from being refunded insurance premiums, taxes and public charges already paid at the time of cancellation of the sales contract due to the buyer's cause attributable to the buyer, it should be in accordance with such agreement.

The decision of the court below to the same purport is justified, and there is no illegality in the misapprehension of the legal principles as to restitution according to the cancellation of the contract. The argument is without merit.

Concerning the fifth point

The court below rejected the above defendant's assertion that there is no validity of the provision of the sales contract that the purchaser already paid with respect to the subject matter of sale as well as the insurance premium, property tax, necessary expenses, and beneficial expenses, etc. which the purchaser paid upon the termination of the contract due to the buyer's violation of the contract, on the ground that there is no evidence to acknowledge it, and in full view of all the circumstances before and after the conclusion of the sales contract of this case which are recognized by macrofics, the above agreement was printed in the ficial text and cannot be viewed as a mere formal example. In light of the records, the above judgment of the court below is just and acceptable.

In addition, in light of the records, the court below's rejection of the above defendant's right to purchase the accessory to the three facilities installed inside the above building on the ground that there is no evidence to acknowledge that the above hot spring hole is owned by the defendant, and there is no evidence to recognize that it was attached with the plaintiff's consent.

All arguments are without merit.

3. Defendant 2 and Defendant 3 did not submit an appellate brief within the deadline for submitting the appellate brief, and the appeal by the said Defendants is without merit.

4. Therefore, all appeals by the Defendants 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.

Justices Yoon Jae-ho (Presiding Justice)