A. The purport of Article 398 of the Civil Code

B. Determination criteria as to whether the estimated amount of damages is unreasonably excessive or excessive

C. Whether an excessive portion may be claimed in a case where the amount of damages was determined at the time of the contract but the damages exceed the estimated amount (negative)

A. The purpose of Article 398 of the Civil Act, which provides for the determination of the amount of damages, is to ensure the performance of obligations by providing a psychological warning to the obligor as well as to facilitate the legal relationship by reducing the occurrence of damages and the difficulty in proving the amount of damages and preventing the occurrence of disputes in advance. Meanwhile, the purpose of the reduction of the amount of damages to be estimated under paragraph (2) is to interfere with the content of the contract in order for the State to eliminate the substantial inequality between the contracting parties and ensure fairness

B. If the court intends to reduce the estimated amount of damages unfairly, it should be deemed that the payment of the estimated amount of damages would result in the loss of fairness by unfairly pressureing on the debtor who is in the position of the economically weak, as a result of considering the economic status of the creditor and the debtor, the purpose and content of the contract, the background leading up to the scheduled amount of damages, the ratio of the estimated amount of damages to the amount of debts, the expected amount of damages, the transaction practices at the time, economic conditions, etc.

C. Where the amount of damages is predetermined at the time of the contract, unless otherwise stipulated, the excess portion may not be separately claimed even if not only ordinary damages incurred by nonperformance, but also special damages are included in the estimated amount, and the creditor’s damages exceed the estimated amount of damages.

Article 398 of the Civil Act

A.B. Supreme Court Decision 90Da14478 delivered on March 27, 1991 (Gong1991, 1265). Supreme Court Decision 92Da22190 delivered on September 22, 1992 (Gong1992, 2976) Decision 92Da22350 delivered on November 24, 1992 (Gong1993, 227), Supreme Court Decision 92Da36212 delivered on January 15, 1993 (Gong193, 702) (Gong198, 1321).

[Judgment of the court below]

Defendant-Appellee et al., Counsel for the defendant-appellant

Seoul High Court Decision 91Na5713 delivered on July 29, 1992

The part of the lower judgment against the Defendant regarding the estimated amount of damages shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The plaintiff's appeal and the defendant's remaining appeals are all dismissed, and the costs of the appeal are assessed against each party.

Each ground of appeal

1. We examine the Plaintiff’s grounds of appeal.

The court below rejected the plaintiff's assertion that the defendant had caused deception to cancel the registration of the special agreement for repurchase in the name of the non-party to the land of this case when the contract of this case was concluded, and there is no error in the misapprehension of the legal principles as to mistake of facts caused by the violation of the rules of evidence, deception, and cancellation of the contract of this case. All arguments are without merit.

2. We examine the defendant's grounds of appeal.

A. On the first ground for appeal

(1) Examining the reasoning of the lower judgment, the lower court: (a) concluded a contract with the Defendant to purchase KRW 9,200,000 (hereinafter referred to as “instant real estate”) of 00,000,000 for each of the above 200,000,000,000 won and KRW 20,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,00,00,00.

(2) An estimate of the amount of damages under Article 398 of the Civil Act is set in advance in the event of nonperformance. The purpose of the determination is to reduce damages and to facilitate legal relations by preventing disputes in advance, and to ensure the performance of obligations by providing psychological warning to the obligor. Meanwhile, the system for reducing the amount of damages under Article 398(2) aims to interfere with the contents of the contract in order to eliminate the substantial inequality between the parties to the contract and ensure fairness. Thus, in order for the court to reduce the amount of damages unfairly excessive in accordance with this provision, the court should consider the economic status of the obligee and the obligor, the purpose and content of the contract, the scheduled amount of damages, the ratio of the estimated amount of damages to the amount of the debts, the estimated amount of damages, the transaction practices at the time, and the economic conditions at that time, etc., and thereby, it should be deemed that the payment of the estimated amount of damages would result in the loss of fairness by unfairly pressure on the obligor who is in the position of the economically weak (see, e.g., Supreme Court Decision 197Da484.

(3) The lower court deemed that the estimated amount of compensation for damages of this case was unfairly excessive. ① Although the Defendant was not the content of the contract at the time of the contract at the time of the contract at the time of the contract at issue, it stated that the Plaintiff could assist the Plaintiff in granting a tourism promotion fund, ② the Plaintiff believed that the Defendant would have been able to receive assistance from the Defendant for the above loan in light of the fact that the Defendant had the capacity to cancel the registration of the non-party Gangwon-do redemption special agreement even before the completion of the hotel, etc. ③ the sales amount of this case was KRW 9,200,000, but the intermediate payment was merely KRW 2,920,000,000, but the total sum of the intermediate payment was limited to KRW 2,920,000,000,000 from the remainder of the contract at the age of the time of the contract at around that time. ④ The above hotel was completed on July 16, 199 and completed the registration at that time.

However, there is no evidence that the evidence cited by the court below was examined, and (3) the Plaintiff and the Defendant agreed to deduct the total amount of the sales price and the intermediate payment from the sales price of the instant case, and the amount equivalent to the deposit money for entertainment from the sales price of the instant case, as recognized by the court below, but there is no evidence that the Plaintiff agreed to deduct the bank loans from the above sales price, and (4) the reason for the instant claim is not considered to reduce the estimated amount of compensation for damages.

(4) Rather, according to Non-Party 1’s testimony as cited by the court of first instance as cited by the court below, it was difficult for the Defendant to plan the construction fund to believe that the intermediate payment of this case and the balance would be paid at time, and due to the Plaintiff’s each payment date, the Plaintiff only spent interest of KRW 1.2 billion to KRW 1.5 billion for the construction fund by acquiring bonds without any choice, and at least KRW 1 billion for the completion of the hotel at least four months or late. Furthermore, due to the Defendant’s nonperformance of the obligation to pay the above amount, the court below also recognized the court below that the Defendant suffered losses as seen in the judgment on the second ground of appeal as follows. On the other hand, in real estate sales, the amount of 10% of the purchase price should be determined as the down payment and agreed to estimate the amount as compensation for damages (see the above party’s judgment).

Therefore, the court below may reduce the estimated amount of damages of this case to the extent that the plaintiff would lose fairness by imposing unfair pressure upon the plaintiff after examining the reasons stated in the above. However, the court below acknowledged some of the factors without any evidence. In so doing, the court below erred by misapprehending the legal principles on the reduction of the estimated amount of damages, which led to the failure to exhaust all necessary deliberations, thereby affecting the conclusion of the judgment. Accordingly, there are grounds to charge the error of misapprehending the legal principles on the reduction of the estimated amount of damages.

B. On the second ground for appeal

The court below, i.e., the defendant's defense, i., "the defendant purchased the land and housing from the non-party 2 in the name of the non-party 3, 1989, 267,000 won ( Address 2 omitted), and paid the down payment amount of KRW 150,000 on January 31, 1990, and the defendant was also unable to pay the intermediate payment. The defendant did not receive the intermediate payment from the plaintiff without the plaintiff's consent on February 8, 1990, with the above non-party 3's estimated payment amount of KRW 50,000,000 among the intermediate payment amount, and the other part of the above estimated payment amount of KRW 70,000,000, which is the non-party 1's non-party 2's non-party 3's non-party 2's non-party 2's non-party 2's non-party 3's non-party -party 3's claim for reimbursement.

3. Therefore, the part of the judgment of the court below against the defendant regarding the estimated amount of damages is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's appeal and the defendant's remaining appeals are all dismissed, and the costs of appeal are assessed against each party. It is so decided as per Disposition by the assent

Justices Kim Sang-won (Presiding Justice)