Where there is an agreement between the contract deposit and the liquidated damages under the contract, the respective legal nature;

Where there is an agreement between the contract performance guarantee and the liquidated damages, the contract performance guarantee shall be deemed to have the nature of penalty or penalty, and the liquidated damages for delay shall be deemed to have the nature of penalty or penalty, unless there are special circumstances.

Article 398 of the Civil Act

Supreme Court Decision 88Meu25601 Decided October 10, 1989 (Gong1989, 1658), Supreme Court Decision 95Da11436 Decided April 26, 1996 (Gong1996Sang, 1683), Supreme Court Decision 95Da24975 Decided May 14, 1996 (Gong196Ha, 1841)

Kim Young-young, Inc., Ltd. (Attorney Seo Young-gu et al., Counsel for the plaintiff-appellant)

Shin Construction Co., Ltd. (Attorney Park Byung-chul, Counsel for the plaintiff-appellant)

Seoul High Court Decision 96Na23599 delivered on May 1, 1997

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

We examine the grounds of appeal.

On the first ground for appeal

In the case where there is an agreement between the contract deposit and the liquidated damages, the contract deposit has the nature of penalty or penalty, and it is reasonable to see the liquidated damages as the liquidated damages (see Supreme Court Decision 95Da28526 delivered on December 12, 1995, Supreme Court Decision 95Da11436 delivered on April 26, 1996, etc.).

As duly determined by the court below, according to the contract of this case between the plaintiff and the defendant, it can be known that there was an agreement for liquidated damages separately from the contract of contract performance guarantee. Therefore, it is reasonable to view that contract performance guarantee has the nature of penalty as penalty

Therefore, the court below is just in calculating the liquidated damages separately from the contract performance guarantee under the contract of this case and ordering the defendant to compensate for the damages, and it is not deemed that the agreed contract performance guarantee between the plaintiff and the defendant is not an estimate of the liquidated damages, and there is no error of law in misunderstanding the legal principles as to the liquidated damages, such as the assertion of the lawsuit. There

On the second ground for appeal

According to the records, the court below's decision that recognized the payment date of compensation for delay as 151 days is just and acceptable, and there is no error of law by misunderstanding the facts against the rules of evidence as alleged in the theory of lawsuit, as otherwise alleged in the grounds for appeal. It is without merit to argue that there is no error of law by misunderstanding the facts against the rules of evidence.

Therefore, the appeal is 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 Lee Im-soo (Presiding Justice)