[1] Whether the effect of liquidated damages under a contract also affects illegal acts related to the contract (negative)

[2] The case holding that an expected amount of damages under a land sales contract does not constitute a separate tort by a buyer after the termination of the above sales contract

[1] In a case where there is an agreement between the parties to set the amount of damages at the time of the contract, it is about the amount of damages caused by the nonperformance of contractual obligations, and it cannot be deemed that it was an estimate of damages caused by illegal acts related

[2] The case holding that the damages equivalent to the rent suffered by the seller due to the buyer's failure to use or profit-making of the above land due to the cancellation of the above sales contract due to the buyer's default of the buyer's obligation for compensation for damages received at the time of the contract, shall not be compensated as the estimated amount of compensation for damages, since the contract is based on a separate tort after the cancellation of the above sales contract, and the seller's cancellation of the contract against the buyer, etc., was brought a lawsuit for removal

[1] Article 398 of the Civil Code / [2] Article 398 of the Civil Code

[1] Supreme Court Decision 65Da34 delivered on March 23, 1965

Plaintiff 1 and one other (Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Defendant-Appellee, Counsel for the defendant-appellant)

Busan High Court Decision 97Na11416 delivered on August 27, 1998

The judgment below is reversed, and the case is remanded to Busan High Court.

The grounds of appeal are examined.

1. Summary of the judgment below

A. The summary of the facts established by the court below is as follows.

The Plaintiffs and Defendant 1 concluded a partnership agreement on the joint construction of the instant building and joint operation of tourist accommodation business on the instant land. On December 22, 1989, the Plaintiffs withdrawn from the partnership agreement, and Defendant 1 purchased the Plaintiffs’ share in the instant land from the Plaintiffs in KRW 1,175,00,000, and paid KRW 330,000 on the same day, and the remainder amount of KRW 845,000,000 was paid to the Defendants on March 20, 190, and Defendant 1 did not pay the Defendants the remainder amount of KRW 330,00,000 to the Defendant 10,000 on the ground that Defendant 1 did not pay the Defendants the remainder amount of KRW 9,30,000,00 for the reason that the Defendants did not jointly construct the instant building, and the Defendant Company did not pay the Plaintiff 1’s remainder amount to the Defendant 19,000,000.

B. As the cause of claim, even though the above judgment was finalized to remove the building of this case and deliver its site, the Defendants failed to remove only the ground part of the building of this case and remove underground parts, thereby causing damages equivalent to the rent for the land of this case to the Plaintiffs. Thus, the Defendants jointly and severally asserted that they are liable to compensate the Plaintiffs for damages equivalent to the rent for the land of this case from January 11, 1995 to the time when the removal of the building of this case was completed and the land of this case was delivered to the Plaintiffs.

C. On this basis, the court below rejected the plaintiffs' assertion on the ground that, unless otherwise agreed, if damages were to be paid in the course of concluding the contract, not only ordinary damages arising from nonperformance but also special damages are included in the estimated amount, and even if the creditor's damages exceed the estimated amount, the defendant 1 and the defendant company jointly constructed the building of this case due to the rescission of the contract of this case by Defendant 1's non-performance of obligation and jointly with the defendant 1 and the defendant company jointly constructed the building of this case, the damages for which the plaintiffs did not use the building of this case for the purpose of removing the building of this case are damages due to the non-performance of obligation. Thus, the plaintiffs cannot claim damages separately from the estimated amount of damages received at the time of the conclusion

2. However, we cannot accept the above judgment of the court below.

In a case where there is an agreement between the parties to set the amount of damages at the time of the contract, it is related to the amount of damages arising from nonperformance of contractual obligations, and it cannot be deemed that such an agreement was liquidated for damages arising from illegal acts related to the contract (see Supreme Court Decision 65Da34, Mar. 23, 1965).

If the facts are as determined by the court below, the contract of this case between the plaintiffs and defendant 1 was rescinded on the grounds of the above defendant's default of the obligation to pay the remaining amount, and the plaintiffs filed a lawsuit against the defendants for removal of buildings and delivery of land on the land of this case, and the judgment was affirmed, but the defendants failed to perform it and the defendants failed to pay it, and thus the damages equivalent to the plaintiffs' rent suffered due to the plaintiffs' failure to use the land of this case shall not be compensated as the amount of damages received at the time of the contract, since the contract of this case was revoked for separate tort after the termination of the contract of this case (or there is no room to discuss the validity of the above scheduled amount of damages in relation to the defendant company).

Nevertheless, the court below erred by misapprehending the nature of the liquidated damages and the legal principles on the validity of the liquidated damages under the premise that the damages equivalent to the above rent of the plaintiffs are damages caused by the nonperformance of obligations under the sales contract of this case. The appeal pointing this out is with merit.

3. Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)