Predetermination of down payment and damages

The down payment in a sales contract has the nature of the cancellation fee under Article 565(1) of the Civil Act. However, only in the case where one of the parties has a special agreement to pay the down payment as a penalty, the down payment has the nature of the scheduled amount of damages under Article 398(4) of the Civil Act. Therefore, without such special agreement, a claim for reduction under the premise that the down payment is scheduled to be the liquidated amount of damages is not reasonable

Articles 398 and 565 of the Civil Act

Supreme Court Decision 79Da217 Decided April 24, 1979, Supreme Court Decision 68Da491 Decided June 4, 1968

[Defendant-Appellee] Plaintiff 1 et al.

Wartime:

Seoul High Court Decision 80Na1478 delivered on October 2, 1980

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The grounds of appeal are examined.

1. The reasoning of the judgment below is that the plaintiff's above-mentioned land was purchased by the Do Governor No. 98 on June 1972, the plaintiff's land for the above-mentioned land at the time of conclusion of the urban planning, and the plaintiff's land for the above-mentioned land was purchased by the Do Governor, and the plaintiff's land for the above-mentioned land for the above-mentioned land for the above-mentioned land for the purpose of construction 70,000 urban planning. The plaintiff's land for the above-mentioned land for the purpose of construction 10,000 urban planning was established at the time of construction of the above-mentioned land for the above 10,000 urban planning, and the defendant's land for the above-mentioned land for the purpose of construction 10,000 urban planning was established at the time of construction of the above-mentioned land for the above-mentioned land for the purpose of construction 10,000 urban planning, and the defendant's basic plan was established at the time of construction of the above land for the above 10,0,0,000.

In light of the records, we affirm the above measures of the court below, and it cannot be said that there was no error of law such as the theory of lawsuit in the preparation of evidence, and even after examining the testimony of the non-party 1, the non-party 2, and the non-party 3 as alleged by the plaintiff, it cannot be confirmed that the motive for purchase was indicated to the defendant as alleged by the plaintiff, or that the defendant was aware of the plaintiff's mistake, and therefore, it cannot be said that it is an omission of judgment because it did not state any part

2. The violation of the principle of good faith in the lawsuit is not alleged in the court below, and thus, it cannot be viewed as an attack material that emphasizes the time of original adjudication.

3. The contract deposit paid between the parties in a sales contract shall have the nature of the cancellation fee under Article 565(1) of the Civil Act, or the nature of the scheduled amount of damages under Article 398 of the same Act as a matter of course shall not be held. However, if one of the parties does not terminate the contract, it shall be deemed that the contract deposit has the nature of the scheduled amount of damages under Article 398(4) of the same Act, and if there is no special agreement, it shall not be deemed as an scheduled amount of damages (see Supreme Court Decision 79Da217 delivered on April 24, 1979). According to the records, it shall not be deemed as an estimated amount of damages under Article 70-7 of the Budget and Accounts Act, which shall apply mutatis mutandis to the defendant as an organization of local autonomy (see Article 52-5 of the Local Finance Act), and Article 77 and Article 79 of the Enforcement Decree of the same Act shall not be deemed as having been cancelled under Article 98(1)18 of the same Act.

Therefore, the appeal is dismissed as without merit, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-hee (Presiding Justice)