[1] The case holding that in the land sale contract concluded between the buyer and the Korea Land Corporation, the agreement on the penalty for breach of contract deposit is not an estimate of damages but a penalty for breach of contract

[2] The validity of a standardized contract clause that unfairly waives the customer's right to restitution due to the cancellation of the contract (negative)

[3] The case holding that the penalty clause under the land sale contract concluded between the buyer and the Korea Land Corporation is presumed to be unilaterally unfavorable to the buyer who is the customer and thus, is unfair, and thus, is contrary to the principle of trust and good faith, or is null and void as it unfairly gives up the customer's right to restitution at the time of cancellation

[1] The case holding that the contract for penalty for breach of contract is generally presumed to be liquidated damages, but in case where the contract is cancelled in the land sale contract concluded between the buyer and the Korea Land Corporation, the contract deposit paid by the buyer to the Korea Land Corporation shall be attributed to the Korea Land Corporation, and where the buyer bears the obligation to compensate for the damages incurred by the Korea Land Corporation due to the cancellation of contract, the contract for the penalty for breach of contract deposit belonging to the above contract deposit shall not be deemed to be liquidated damages but be subject to sanction against the buyer by devolving it to the Korea Land Corporation when the buyer violates the contract of the buyer, and at the same time, indirectly compelling the buyer's performance of contract

[2] Terms and conditions that unreasonably waive a customer's right to restitution due to the rescission of a contract are presumed to be unfair disadvantageous to the customer and thus null and void in violation of the principle of trust and good faith.

[3] The case holding that the penalty clause under the land sale contract concluded between the buyer and the Korea Land Corporation is presumed to be unilaterally unfavorable to the buyer who is the customer and thus unfair, and thus is contrary to the principle of trust and good faith, or that the contract which unfairly gives up the customer's right to claim restitution at the time of cancellation of the contract, and thus, is null and void in violation of Article 6 (1), (2) 1, or Article 9 (3) of the

[1] Article 398 of the Civil Code / [2] Article 6 (1), (2) 1, and Article 9 subparagraph 3 of the Regulation of Standardized Contracts Act / [3] Article 6 (1), (2) 1, and Article 9 subparagraph 3 of the Regulation of Standardized Contracts Act

[1] [2] [3] Supreme Court Decision 97Da56969 delivered on April 24, 1998 / [2] Supreme Court Decision 93Da30082 delivered on May 10, 1994 (Gong1994Sang, 1641) Supreme Court Decision 96Da19758 delivered on September 10, 1996 (Gong196Ha, 309) Supreme Court Decision 98Da3697 delivered on December 23, 1998

Plaintiff (Attorney Choi Young-soo, Counsel for the plaintiff-appellant)

Korea Land Corporation (Law Firm Central Patent Office, Attorneys Kim Tae-sung et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 97Na9897 delivered on July 31, 1997

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

The defendant's attorney's grounds of appeal are examined.

1. On the first ground for appeal

According to the reasoning of the judgment below, the court below determined that the contract for penalty is generally presumed to be the liquidated damages, but in this case, the contract bond paid by the plaintiff to the defendant is attributed to the defendant when the contract for the sale of the land between the plaintiff and the defendant is rescinded, and the plaintiff bears the obligation to compensate for the damage incurred by the defendant due to the termination of the contract. In light of the fact that the contract for the cancellation of the contract for the sale of the land in this case is not the liquidated damages but the contract for the breach of the contract in this case (hereinafter the penalty clause in this case) is not the liquidated damages but the contract for the cancellation of the contract in this case, and

In light of the records, the above fact-finding and judgment of the court below are just, and there is no error of law by misunderstanding the legal principles as to penalty or liquidated damages as alleged in the grounds of appeal. The grounds for appeal are without merit.

2. On the second ground for appeal

Article 6 (1) of the Act on the Regulation of Terms and Conditions (hereinafter referred to as the "Terms and Conditions Regulation Act") provides that "any clause which has lost fairness against the principle of trust and good faith shall be null and void." Article 6 (2) provides that "if a standardized contract provides any of the following matters, it shall be presumed that the standardized contract has lost fairness." Article 6 (1) provides that "any clause which is unreasonably unfavorable to a customer shall be null and void." Article 9 provides that "any clause of a special contract which provides for the cancellation or termination of a contract which falls under any of the following subparagraphs shall be null and void." Article 6 (1) provides that "Article 6 (3) provides that "Where a standardized contract provides for the contents that fall under any of the following subparagraphs, it shall be excessive to the customer's duty to restore due to the cancellation or termination of a contract, or unreasonably waives the customer's right to restitution without reasonable grounds." Thus, any standardized contract that unreasonably gives the customer's right to restitution due to the cancellation of a contract shall be presumed unfair unfavorable to the customer and shall be null and void.

According to the reasoning of the judgment below, the contract deposit of this case is deemed to be a standardized contract under Article 2 (1) of the Act on the Regulation of Terms and Conditions, which is the content of the contract for sale in lots prepared by the defendant in advance with the bidder who is a majority party to enter into the contract for the land of housing site development zone. The contract deposit of this case is equivalent to the amount determined by the ordinary contract amount as 10% of the purchase price, and is excessive as an penalty added separate from damages, and the form of Article 16 (2), (4) and (5) of the contract of this case is also interpreted as the effect where the contract is cancelled due to the buyer's fault, but Paragraph (5) of this case is defined as belonging to the defendant in all cases where the contract is cancelled, regardless of whether the contract is cancelled due to the plaintiff's fault, the contract bond of this case is cancelled, and the contract bond of this case is unreasonable in light of the provisions of Article 12 and Article 14 of the Act on the Regulation of Terms and Conditions and Conditions, or the seller is not liable for cancellation or cancellation of all other reasons attributable to the contract.

In light of the above legal principles and records, the above fact-finding and judgment of the court below are just and acceptable, and there is no error in the misapprehension of legal principles as to the regulation of terms and conditions and the interpretation of terms and conditions as alleged in the grounds of appeal. It is without merit.

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.

Justices Shin Sung-sung (Presiding Justice)