The case holding that the above agreement is null and void in violation of the Act on the Regulation of Terms and Conditions, on the ground that it is reasonable to deem that the penalty has the nature of penalty for breach of contract in case where the above agreement is cancelled due to a cause attributable to the buyer, and that the contract is null and void in violation of the Act on the Regulation of Terms and Conditions, in case where the amount equivalent to 10% of

In a case where the above agreement is terminated due to a cause attributable to the buyer under the apartment house supply agreement, the amount equivalent to 10% of the advance payment paid by the buyer shall be attributed to the seller as well as the buyer, and the buyer shall not be exempted from liability for damages incurred by the seller, in general, the agreement of the penalty for breach of contract shall not be presumed to be an estimate of the compensation for damages in the ordinary sales contract, but shall be deemed to have the nature of the so-called penalty where the buyer imposes sanctions on the seller by indirectly compelling the buyer's performance of contract at the same time, and the above collective housing supply agreement constitutes a standardized contract under Article 2 (2) of the Regulation of Standardized Contracts Act on the grounds that the above collective housing contract constitutes a standardized contract under Article 2 (2) of the same Act on the grounds that 10% of the advance payment of the purchase and sale falls under the amount determined by the estimated amount of compensation for damages in ordinary sales, and that the seller shall not pay interest to the buyer at the time of the cancellation of the agreement, and that the seller shall be deemed to have been unfairly discharged or discharged from liability for damages due to the buyer, in light of the above provision of the agreement or 10%.

Article 398(4) of the Civil Act; Article 741 of the Civil Act; Articles 2(2), 6(1), 6(2)1, 8, and 9 subparag. 3 of the Regulation of Standardized Contracts Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

[Plaintiff, Appellant] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Supreme Court Decision 97Da56969 delivered on April 24, 1998

[Plaintiff-Appellant] Plaintiff 1 et al. (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Hocom Construction Co., Ltd. (Attorney Park Do-young, Counsel for the plaintiff-appellant)

Gwangju Metropolitan City (Attorney Disturbe-chan, Counsel for defendant-appellant)

1. The defendant shall pay to the plaintiff 492,250,000 won with 5% interest per annum from March 25, 1998 to April 2, 1999 and 25% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 492,250,00 won with 5% interest per annum from March 25, 1998 to the delivery date of a copy of the complaint of this case, and 25% interest per annum from the next day to the full payment date.

1. Basic facts

The following facts are either disputed between the parties, or acknowledged by Gap evidence Nos. 1, 2, 3-1, 4-1, 5-5-1, 2, 3, 8, 9, Eul evidence Nos. 3, 4, 5, 7, 8, 9, 10-1, 2, 11, 13 of Eul evidence No. 10, and witness testimony No. 11, 11 and 13 of this Act, and there are no objections.

A. On November 30, 1996, the Plaintiff and the Defendant entered into a land supply agreement (hereinafter “instant agreement”) on the purchase and sale advance amounting to KRW 9,845,00,000 on the purchase and sale advance amounting to KRW 8,272 on the land for multi-unit housing in the Jeju New District Housing Site Development Implementation Zone D-1 block area executed by the Defendant (hereinafter “Non-Party Company”) with the Defendant, and agreed to pay the purchase advance amount in six installments, with 20% of the sales advance up to four occasions, and 5 and six installments with the remainder of 10%.

B. On July 14, 1997, the Plaintiff and the non-party company concluded an additional contract with the purport that the Defendant will accept the request when requesting the cancellation of the agreement because it is difficult to conduct the project due to the cause attributable to the Defendant and the purchaser, and that the time of cancellation of the agreement will be the time when the request for cancellation was sent.

C. On March 29, 1997, the Plaintiff and the non-party company paid 1,969,00,000 won each (the Plaintiff’s share 984,50,000,000) to the Defendant on the date of entering into the agreement, and on March 29, 1997, the Plaintiff and the non-party company borrowed the amount equivalent to the above advance from the non-party bank between the Plaintiff, the non-party company, the Defendant, and the Korea Housing and Commercial Bank (hereinafter “non-party bank”) and the non-party company borrowed the amount equivalent to the said advance from the non-party bank, and the above bank shall pay the interest on it directly to the Defendant. In the event the instant agreement is cancelled, the non-party bank agreed to return the advance and its interest paid by the Defendant to the non-party bank on July 29 and November 29 of the same year, and then the non-party bank paid 1,969,000 won each to the Defendant.

D. Upon the non-party company’s final default on March 3, 1998, the non-party bank requested the plaintiff and the non-party company to cancel the agreement of this case by itself, and the plaintiff consented to cancel the agreement of this case on March 4, 1998. The non-party bank sent a written request for cancellation of the agreement prepared by the plaintiff and the non-party company to the defendant on July 14, 1997, pursuant to the agreement of July 14, 1997, and the defendant returned the written request for cancellation of the agreement of this case to the plaintiff and the non-party company on March 24, 1998. Of the advance paid on March 24, 1998, the amount equivalent to the plaintiff’s share of 3,938,000,656,990 won and the total amount of interest paid by the non-party bank to the non-party bank and returned 4,922,250,000 won to the plaintiff as penalty for negligence.

E. At the time of the cancellation of the instant agreement, the Defendant implemented approximately KRW 62% of the site creation works on the said block, a multi-family housing site.

2. Judgment on the parties' arguments

A. The parties' assertion

Article 17 (4) of the Convention provides that the contract of this case constitutes a standardized contract under the Regulation of Standardized Contracts Act (hereinafter referred to as the "the above Act"), and Article 17 (3) of the Convention provides that excessive compensation may be forfeited in excess of the estimated amount of compensation for damage in a transaction. On the other hand, Article 17 (3) of the Convention provides that even if the damage to the plaintiff was incurred due to the cancellation of the contract, the compensation for the damage shall not be sought even if the damage was caused to the plaintiff, who is a customer, as a result of the cancellation of the contract. The above provisions are presumed to be unfair disadvantageous clauses against the principle of good faith and are presumed to be unfair, or are against the principle of good faith, to unreasonably waive the customer's right to restitution at the time of the cancellation of the contract, and thus, the defendant claims that the plaintiff is liable to return 492,250,000 won of the above advance payment, which is 10% of the total amount of the sale price of the land of this case, and thus, the plaintiff and the defendant should not be held that the sale price of this case will be cancelled.

B. Legal nature of the penalty provision of this case

According to the statement in Gap evidence No. 1, when the agreement was cancelled due to a cause attributable to the plaintiff, the plaintiff shall immediately restore the land for the purpose to its original condition as at the date of the conclusion of the agreement and deliver it to the defendant (Article 17 (2) of the Convention). ② Even if the defendant incurred losses due to the cancellation of the agreement in the event that the agreement was cancelled for the above cause, the damage shall not be compensated (Article 17 (3) of the Convention). ③ In the event that the agreement was cancelled due to a cause attributable to the plaintiff, the defendant shall revert the amount equivalent to 10% of the total purchase price from the advance received from the plaintiff to the defendant, and the deducted amount shall be refunded within 3 months in consideration of the financial conditions. In this case, interest on the refund is not borne (Article 4). ④ The agreement on advance payment to the defendant does not indirectly exempt the plaintiff from the obligation to compensate for damages suffered by the defendant due to the cancellation of the agreement (Article 17 (5) of the Convention is presumed to be compensation for breach of the agreement, but not the obligation to compensate for damages to the plaintiff to the defendant.

(2) Whether the penalty clause of this case violates the Regulation of Standardized Contracts Act

In full view of the purport of the argument in Gap evidence No. 1, it is recognized that the agreement of this case was concluded by the land supply agreement prepared by the defendant in advance to apply the contents of the contract to many customers, so the agreement of this case constitutes a standardized contract under Article 2 (2) of the above Act.

However, Article 6 of the above Act provides that "any clause in a standardized contract which has lost fairness against the principle of trust and good faith shall be null and void." Article 6 provides that "if the standardized contract provides for any of the following matters, the standardized contract shall be presumed to lose fairness (paragraph 2)." Article 8 provides that "any clause which unfairly disadvantage customers" shall be null and void, and Article 9 provides that "any clause that imposes an obligation on customers to compensate for delayed damages, etc. which are unreasonably excessive, shall be unreasonably excessive," and Article 9 provides that "any clause of the standardized contract concerning the cancellation or termination of a contract which falls under any of the following subparagraphs shall be null and void." Article 6 provides that "It shall be deemed that a clause that requires customers to unilaterally bear the duty of restitution of customers due to the cancellation or termination of the contract, or unreasonably waives their right to restitution without any reasonable reason, 10% of the above advance payment shall be equivalent to the amount determined by the contract amount, and thus, it shall not be deemed that the defendant would be liable for damages to the plaintiff, even if it did not pay damages to the plaintiff.

Therefore, the defendant's act of reverting 10% of the above advance payment to the defendant based on the terms and conditions of this case which are null and void shall be deemed null and void. Accordingly, the defendant gains profits equivalent to the above advance payment without any legal ground, while the plaintiff suffered losses equivalent to the same amount. Therefore, the defendant is obligated to return the above advance payment to the plaintiff as unjust enrichment.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 492,250,000 won and damages for delay at the rate of 5% per annum as stipulated in the Civil Act from March 25, 1998 to April 2, 1999, which is the sentencing day of this case, and 25% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the day of full payment. Thus, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remainder is dismissed as there is no justifiable reason.

Judges Kim Yong-il (Presiding Judge)