[1] In a case where Gap clearly expresses his intention to cancel a sales contract based on a special contract under the sales contract and return the down payment, and thereafter files a lawsuit seeking the return of the down payment, the case holding that Gap's notice of cancellation is the purport of exercising the right to cancel the contract under the special contract under the sales contract, and it cannot be seen as an exercise of the right to cancel the contract under

[2] Whether the contract deposit has the nature of penalty, unless otherwise stipulated (negative)

[3] Whether a claim for the refund of the purchase price arising from the cancellation of a sales contract can be subject to an assignment order even before the cancellation of a sales contract (affirmative)

[1] In a case where Gap clearly expresses his intention to cancel a sales contract based on a special contract under the sales contract and to return the down payment, and thereafter files a lawsuit seeking the return of the down payment, the case holding that Gap's notice of cancellation is the purport of exercising the right to cancel the contract under the special contract under the sales contract, and it cannot be seen as an exercise of the right to cancel the contract under

[2] Where a contract deposit is received in a contract for consideration, the contract deposit has the nature of the cancellation money, so long as there is no special agreement for the contract to pay it as penalty, the other party can only receive compensation for the actual damages incurred due to nonperformance of the contract, and the contract deposit does not naturally belong to the other party as a penalty for breach of contract.

[3] Where a sales contract is terminated, a purchaser's claim for the return of the already-paid sales price to the seller shall be the basis of the claim, but it shall be a monetary claim with a certain face value and value not yet occur until the sales contract is terminated. Therefore, it may be the subject of an assignment order.

[1] Articles 543 and 565 of the Civil Act / [2] Articles 398(1) and (4), 565, and 567 of the Civil Act / [3] Articles 548 and 563 of the Civil Act; Article 229 of the Civil Execution Act

[2] Supreme Court Decision 92Da23209 delivered on November 27, 1992 (Gong1993Sang, 253) Supreme Court Decision 95Da11429 delivered on June 14, 1996 (Gong1996Ha, 2156), Supreme Court Decision 95Da54693 delivered on June 14, 1996 (Gong1996Ha, 2166) / [3] Supreme Court Decision 2000Da31526 delivered on October 6, 200 (Gong200Ha, 2288)

Plaintiff (Law Firm Jeong, Attorneys Jeong Ho-sung et al., Counsel for the plaintiff-appellant)

Defendant 1, et al., a lawsuit taking place by the deceased Park-○, (Attorneys Park Jong-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na110556 decided March 14, 2007

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

The interpretation of a juristic act is to clearly confirm the objective meaning which the parties have given to the act of indicating, and it does not include only the language used. However, the objective meaning that the parties have given to the act of indicating is to be reasonably interpreted according to the contents of the language regardless of what the parties’ internal intent is, and in the event that the objective meaning is not clearly expressed by the party’s language, it shall be reasonably interpreted in accordance with logical and empirical rules, social common sense, and common sense and transaction norms so that it conforms to the ideology of social justice and equity, comprehensively takes into account the form and contents of the language, the motive and background leading up to the juristic act, the purpose and genuine intent of the parties to the juristic act, and transaction practices, etc. (see, e.g., Supreme Court Decision 2008Da9095, May 14, 2009).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and determined that, in light of the fact that the non-party 1 corporation notified the Defendant of the cancellation of the contract due to the impossibility of the apartment construction business, on the ground of the “special agreement for cancellation due to the impossibility of the apartment construction business,” and explicitly demanded the return of the down payment at the time, and thereafter filed a lawsuit claiming the return of the down payment based on the cancellation of the contract against the deceased, it is difficult to view that the notice of the first cancellation of the contract in this case includes the purport of cancelling the contract in this case even if it renounced the down payment.

Examining the reasoning of the judgment below based on the above legal principles, the above judgment of the court below is acceptable, and there is no error in the misapprehension of legal principles as to the interpretation of declaration of cancellation based on down payment as otherwise alleged in the ground of appeal

2. Regarding ground of appeal No. 2

In the case of concluding a contract for consideration where the down payment is received, the down payment has the nature of the cancellation money, so long as there is no special agreement for the contract to pay it as penalty, the other party can only receive compensation for the actual loss incurred due to nonperformance of the contract even if the contract was rescinded due to reasons attributable to either of the parties, not the down payment as a penalty (see Supreme Court Decision 95Da54693 delivered on June 14, 196, etc.).

The allegation in the grounds of appeal in this part is limited to the premise of the exclusive view that the down payment in this case has the nature of penalty as a matter of course, and further, there is no evidence to prove that there was an oral agreement to give the down payment in penalty or penalty, and thus, it is reasonable to conclude that the court below’s rejection of the deceased’s claim on the reversion of the down payment is included in the judgment of rejection of the deceased’s claim that the down payment has the nature of penalty, and therefore, it is not acceptable to accept the allegation in the grounds of appeal that there

3. Regarding ground of appeal No. 3

According to the facts and records acknowledged by the court below, the plaintiff did not distinguish the deceased of the non-party 1 corporation, which is a condition precedent claim, from the co-defendant 3 and 4 of the court below, and the non-party 1 corporation, which is a claim for the refund of down payment against the non-party 2, 3 and 4 of the court below, and each claim for the refund of down payment against the non-party 2, 3 and 4 of the court below, which already occurred, and indicated the whole claim for the assignment order of this case as "the claim for the refund of the purchase price as follows, which was returned to the third party obligor". However, in its content column, it can be seen that the whole claim against the deceased of the non-party 1 corporation, which is a condition precedent, is limited only to the claim for the refund of down payment which was already incurred with the other debtor as well as the claim for the refund of down payment, and the plaintiff's claim for the refund of down payment can be clearly divided into the whole claim against the third party debtor.

4. Regarding ground of appeal No. 4

In the event that a sales contract is terminated, a purchaser’s claim for the refund of the purchase-price to the seller is based on the basis of the occurrence of a claim until the sales contract is terminated, but it is not yet created as a right, and thus, a monetary claim with a certain face value can be subject to an assignment order (see Supreme Court Decision 2000Da31526, Oct. 6, 200).

The lower court determined that the assignment order cannot be deemed null and void solely on the ground that the instant contract was not rescinded at the time of the instant assignment order, since the instant claim for the refund of down payment was only based on the accrual of the claim before July 3, 2006, and was a monetary claim with a certain face value, even though it was long as the instant claim was based on the basis of the occurrence of the claim

In light of the above legal principles, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to the non-conformity of assignment order, as otherwise alleged in the ground of appeal.

5. Conclusion

Therefore, all appeals 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 on the bench.

Justices Ahn Dai-hee (Presiding Justice)