[1] The legal nature of the subscription amount for parcelling-out payment for the purchase of housing lots from the Korea Land Development Corporation

[2] Criteria for determining "where the estimated amount of damages under Article 398 (2) of the Civil Code is unreasonably excessive"

[1] The contract for the application for parcelling-out paid at the time of the application for parcelling-out in order to purchase a detached house construction site within the housing site development project zone shall be deemed to have agreed on the penalty in case where the parties to the contract for parcelling-out due to the lot of parcelling-out fail to fulfill the obligation under the reservation, and such agreement shall be deemed to

[2] "Where the estimated amount of damages" under Article 398 (2) of the Civil Code refers to cases where it is acknowledged 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 norms, in light of the general social norms, such as the status of the creditor and the debtor, the purpose and content of the contract, the motive for promising the amount of damages, the estimated amount of damages, the ratio of estimated amount of damages to the amount of debts, the size of estimated damages, and

[1] Article 398(4) of the Civil Act / [2] Article 398(2) of the Civil Act

[1] [2] Supreme Court Decision 94Da18140 delivered on October 25, 1994 (Gong1994Ha, 3087) / [1] Supreme Court Decision 93Da30082 delivered on May 10, 1994 (Gong1994Sang, 1641) / [2] Supreme Court Decision 89Da1081 delivered on December 12, 1989 (Gong190, 257), Supreme Court Decision 92Da36212 delivered on January 15, 1993 (Gong193, 702), Supreme Court Decision 95Da3658 delivered on November 10, 195 (Gong195Ha, 395Ha, 3912)

Plaintiff

Korea Land Development Corporation (Dongseo Law Firm, Attorneys Park Woo-dong et al., Counsel for the plaintiff-appellant)

Seoul District Court Decision 95Na18986 delivered on August 22, 1995

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

We examine the grounds of appeal.

1. As duly determined by the court of first instance as cited by the court below, where the defendant makes an application for parcelling-out in a daily newspaper for the purpose of selling the construction site for detached houses in the housing site development project zone implemented by the defendant, a certain amount of money shall be paid as an advance payment for parcelling-out, and where the winner does not conclude a sales contract within a certain period, the prize shall be nullified and the advance payment for parcelling-out shall be reverted to the defendant. If the plaintiff accepts the conditions of the above public notice for parcelling-out and pays the advance payment for parcelling-out, the above advance payment for parcelling-out shall be deemed to have been agreed upon if the party to the contract for parcelling-out fails to perform the obligation under the advance payment, and such an agreement shall be deemed to have the nature of the advance payment for parcelling-out (see Supreme Court Decision 94Da18140, Oct. 25, 1994). In the same purport, the court below's decision is just and there is no error in the misapprehension of legal principles as to the above advance payment for parcelling-out.

Even though the time when the contract for the sale of this case was established is the time when the plaintiff was determined as the winner, the nature of the contract for the sale of this case does not change as the scheduled amount of damages for the above application for the sale of this case.

2. "Where the estimate of damages amount is unreasonably excessive" under Article 398 (2) of the Civil Code refers to a case where it is acknowledged 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 in light of the overall circumstances such as the creditor and debtor's status, purpose and contents of the contract, the motive for scheduled amount of damages, the estimated amount of damages, the ratio of estimated amount of damages to the amount of debts, the amount of expected damages, the size of the estimated amount of damages at the time of the transaction, etc. (see Supreme Court Decision 94Da18140 delivered on the above party). The court below's purport of the above agreement, the size of the public announcement of the sale of this case executed by the defendant, the size of the public announcement of the sale of this case, the position of the parties, the concept of the general transaction and the economic condition after the application for parcelling-out, and it is justified to reduce it in accordance with the above legal principles.

3. 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 Lee Jae-soo (Presiding Justice)