In case where there is no special agreement stipulating that the down payment shall be liquidated damages, whether the down payment may be deemed as liquidated damages (negative)

In concluding a contract for consideration, even if the amount, such as the down payment, is received or received, it can only be viewed as having the nature of liquidated damages under Article 398(4) of the Civil Act only in cases where there is a special agreement to permit it as penalty, and unless otherwise stipulated, the down payment, etc. shall not be regarded as an liquidated damages.

Articles 105 and 398 of the Civil Act

Supreme Court Decision 92Da23209 delivered on November 27, 1992 (Gong1993Sang, 253) Supreme Court Decision 94Da5109 delivered on February 10, 1995 (Gong1995Sang, 1319) Supreme Court Decision 95Da54693 delivered on June 14, 1996 (Gong196Ha, 2166)

Plaintiff

Defendant (Attorney Jeong-soo et al., Counsel for defendant-appellant)

Seoul High Court Decision 94Na22844 delivered on January 19, 1995

The part of the lower judgment against the Defendant is reversed and that part of the case is remanded to the Seoul High Court.

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

1. Summary of the judgment below

(a) Fact-finding;

According to the reasoning of the judgment below, on April 19, 193, the plaintiff leased approximately 4,300 square meters from the defendant on April 19, 1993 to use the above 10th of the Seocho-gu ( Address 1 omitted) shopping center building for restaurant, and the lease deposit amount of KRW 1,00,000 for two years from September 1, 19 of the same year, and management fees of KRW 1,80,000 for monthly rent, and the lease deposit of KRW 150,000 for intermediate payment and KRW 150,000 for April 30 of the same year and KRW 150,000 for intermediate payment and KRW 30,00 for the above 00,000 for the above 10,000,000 for the above 300,000, 300,000, 300,000, and 10,000,000).

B. Determination

In accordance with the above facts, when the plaintiff, who is a lessee, fails to pay the deposit amount by the agreed date, the court below held that the lessor's cancellation of the contract and the agreement to not return all the contract deposit was concluded not only in relation to the lessee, but also in relation to the lessor, and that the lease contract was terminated due to the non-performance of the obligation under the above lease contract. Since the defendant refused to receive the intermediate payment performed by the plaintiff at the agreed time of the intermediate payment payment payment, and failed to perform the obligation, the defendant is liable to pay the above contract deposit amount to the plaintiff. Thus, the court below held that the defendant is liable to pay the penalty equivalent to the above contract deposit to the plaintiff, barring any special circumstances, for the plaintiff to seek the payment of the penalty equivalent to the above contract deposit as the claim of this case, the above penalty is deemed to have the nature of liquidated damages, and considering all the circumstances shown in the argument of this case, the above contract deposit amount of 150,000,000 won which was agreed to be the liquidated damages of this case was reduced to the defendant, and the plaintiff's claim for damages.

2. Judgment of party members

However, in the conclusion of a contract for consideration, even if the amount, such as the down payment, is received and delivered, it can only be deemed as having the nature of the scheduled amount of damages under Article 398(4) of the Civil Act, and in the absence of such special agreement, the down payment, etc. shall not be deemed as an scheduled amount of damages (see Supreme Court Decision 94Da5109 delivered on February 10, 1995, 195, 94Da5456 delivered on October 11, 1994, unless there is any clear and acceptable counter-proof evidence to deny the contents of the contract, the court shall recognize the existence and contents of the expression of intent as stated therein (see Supreme Court Decision 93Da5456 delivered on October 11, 1994).

However, according to Gap evidence No. 1 (lease), which is a disposal document prepared between the plaintiff and the defendant and without dispute over the establishment of the petition, the lessor merely states that if the lessee fails to pay the balance of the deposit by the designated date, the lessor does not cancel the contract and return the deposit paid as the first installment, and it is clear that there is no statement about the case where the lessor violates the contract. Thus, in light of the aforementioned legal principles and the objective meaning of the language and text, if the lessor is in default, it shall be acknowledged that the lessee has not agreed to pay the penalty as the liquidated damages, regardless of the fact that the lessee is entitled to receive specific proof of the damage incurred thereby, and it shall not be concluded that the lessor has agreed to pay the penalty without any special circumstance, solely on the ground that there was an agreement on the penalty as the liquidated damages.

Furthermore, the court below immediately rejected the defendant's assertion that "if one of the plaintiff and the defendant rescinds the above lease contract due to unavoidable reasons even before the payment of the advance payment, it shall not claim a penalty for breach of contract." The defendant cannot claim a penalty for breach of contract against the defendant, even if it is deemed that there was an agreement to pay a penalty for breach of contract since the contract was rescinded due to unavoidable reasons, the plaintiff cannot claim the payment of the penalty for breach of contract against the defendant. According to the records, the evidence presented by the court below is only the fact that the defendant unilaterally forged the agreement (Evidence No. 1) which contains the above contents. In light of the records, the evidence presented by the court below is the plaintiff's statement that it is difficult to deem that the objective credibility is guaranteed due to conflict of interest with the defendant, and it is difficult to recognize that the defendant forged the above agreement only with the evidence, regardless of its forgery, and the purport of the above agreement regardless of its forgery, it appears that both parties understand the cancellation of the contract where one of the plaintiff and the defendant cancels the contract due to unavoidable reasons, and thus it should not claim a penalty for breach of contract.

Therefore, the court below's order for the payment of the above reduced amount under the premise that the defendant, a lessor, should also be deemed to have agreed on the penalty for breach of contract as the lessee, cannot be deemed to have committed an unlawful act affecting the conclusion of the judgment by misunderstanding the legal principles as to the penalty agreement or misunderstanding the facts in violation of the rules of evidence. Therefore, the argument that points

3. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and that part of 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.

Justices Yang Gyeong-sung (Presiding Justice)