[1] In a case where there is a separate agreement between the parties as to the rate of damages for delay after the termination of the contract was delayed, whether the rate of damages for delay under the agreement applies even if the rate of damages for delay is lower than the statutory rate (affirmative)

[2] In a case where there is an agreement between the parties as to the interest to be added to the money to be returned at the time of termination of the contract, whether the rate of the agreement is applied to damages for delay arising from delay (affirmative in principle), and in a case where the rate of the agreement is lower than the statutory rate, whether damages for delay at the statutory rate can be claimed

[3] Meaning of Article 3(2) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (hereinafter “Special Cases Concerning Expedition, etc.”) and in a case where the appellate court has maintained the claim cited by the first instance court as it is, whether it is reasonable for the Defendant to claim the existence and scope of the obligation (negative in principle)

[1] When one of the parties cancels a contract, each party shall pay the other party interest in addition to the payment of the money to be returned. The interest added here falls within the scope of restitution, and has the nature of restitution of unjust enrichment, and is not damages for delay of the obligation to return. Therefore, if there is a special agreement between the parties as to the interest, the rate of such agreement is applied first, and if there is no agreement, the rate of the agreement is applied first, civil or commercial statutory interest rate shall apply. On the other hand, as for the period from the delay of the obligation to return the unjust enrichment, the interest rate for delay shall be applied. In addition, if there is a separate agreement between the parties as to the interest rate of the delay of the obligation to return the unjust enrichment, and the interest rate for delay shall be applied. The same shall apply

[2] In a case where there is an agreement between the parties as to the interest to be added to the money to be returned at the time of termination of a contract, it is consistent with the intent of the parties to the agreement that the agreement would have agreed on the rate of delay. However, in a case where the agreement rate is lower than the statutory interest rate, it is reasonable to deem that the party may claim damages for delay at the statutory interest rate, instead of the agreement. This is because, in comparison with the fact that even if there is an agreement to exempt the obligation to pay the interest to be added from the date of receiving the money to be returned at the time of restitution due to termination of the contract, if the obligation to return the money is in a state of delay

[3] Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings provides that "when an obligor deems it reasonable to dispute the existence or scope of the obligation," the part which provides that "when there is a reasonable ground for the obligor's argument that the existence or scope of the obligation exists in relation to the existence or scope of the obligation." Thus, the issue of whether the said dispute is unreasonable is relevant to the fact-finding and its evaluation by the court regarding the relevant case. However, in a case where the appellate court maintains the claim cited by the first instance court as it is, barring any special circumstance, it cannot be deemed reasonable for the Defendant to see the existence and scope of

[1] Articles 387, 397(1), and 548 of the Civil Act / [2] Articles 387, 397(1), and 548 of the Civil Act / [3] Article 3(2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings

[1] Supreme Court Decision 95Da26797 delivered on October 12, 1995 (Gong1995Ha, 3742), Supreme Court Decision 2000Da9123 Delivered on June 9, 200 (Gong2000Ha, 1636) / [2] Supreme Court Decision 2006Da14363 Delivered on April 24, 2008 (Gong2008Sang, 763), Supreme Court Decision 2009Da85342 Delivered on December 24, 2009 (Gong2010Sang, 247) / [3] Supreme Court Decision 9Da20155 delivered on February 25, 200 (Gong200, 809Sang, 209) / [3] Supreme Court Decision 209Da253842 delivered on April 25, 2002

Plaintiff

NAS Construction Co., Ltd. (Law Firm LLC, Attorneys Lee Tae-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2010Na53282 decided May 20, 2011

1. The part of the lower judgment against the Plaintiff (Appointed Party) and the appointed parties corresponding to the amount ordered to be additionally paid below shall be reversed. A. The Defendant shall pay to the Plaintiff (Appointed Party) and the appointed parties an amount calculated by the ratio of 2% per annum from April 2, 2009 to January 29, 2010, and 17% per annum from the next day to May 20, 2011, and (b) from January 30, 201 to May 20, 201, each amount calculated by the ratio of 15% per annum from January 30, 2010 to May 20, 201.

2. The remaining appeals by the Plaintiff (Appointed Party) are dismissed.

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. The judgment of the court below on the interest and damages for delay added to restitution

A. In full view of the evidence of its employment, the court below found that the main text of Article 2(3) of the sales contract of this case provides that "if a buyer becomes unable to move into within three months from the scheduled date of occupancy due to a cause attributable to the defendant, he may cancel this contract." Article 3(2) of the sales contract of this case provides that "if this contract is cancelled due to a cause falling under Article 2(3), the defendant shall pay 10% of the total amount of the supply price to the buyer as penalty." Paragraph (3) provides that "in the case of paragraphs (1) and (2) of this case, with respect to the price already paid to the buyer (in the case of paragraph (1) of this case, the penalty shall be deducted) by adding interest equivalent to 3% per annum per annum from the date of its receipt to the date of its refund, the plaintiff (appointed party) and the buyer (hereinafter all of them shall be referred to as "the plaintiff, etc."), who is the buyer of this case, shall not move into the sale contract of this case, within December 3, 2008.

B. Furthermore, the lower court determined that the sales contract in this case was lawfully rescinded on March 25, 2009 when the copy of the complaint was filed by the Plaintiff, etc. on the grounds of delay of occupancy due to the reasons attributable to the Defendant, and the return of the sales price already paid and the payment of penalty was served on the Defendant on March 25, 2009, and determined that the sales contract in this case was legally rescinded on or around April 1, 2009 when three months elapsed from December 2008, which was the scheduled date of occupancy of the apartment in this case, and that there was an obligation to return the sales price received as the restoration duty and to pay penalty as well as the obligation to pay penalty. In addition, with respect to interest or delay damages on the obligation to return the sale price in this case and the obligation to pay penalty, the lower court cited in the following (2) and dismissed the remainder.

(1) The content of claim: ① With respect to the obligation to return the sale price, the amount calculated by the agreement rate of 3% per annum under Article 3(3) of the instant sales contract from the payment date of the purchase price to the delivery date of the copy of the complaint of this case ( March 25, 2009) and the amount calculated by the rate of 20% per annum under Article 3(3) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings (hereinafter “Promotion Act”) from the next day to the day of complete payment; ② with respect to penalty, the amount of penalty was claimed by the rate of 20% per annum under the above Promotion Act from the day after the delivery date of the copy of the complaint of this case

(2) The amount cited by the lower court: ① with respect to the obligation to return the sale price, the amount calculated by 3% per annum from the date of the payment of the sale price to the date of the declaration of the lower judgment (as of May 20, 201), and the amount calculated by 20% per annum from the next day to the date of the full payment, and ② with respect to the penalty, the amount calculated by 5% per annum from the date of cancellation (as of April 1, 2009) to the date of the declaration of the lower judgment, and 20% per annum from the next day

2. Regarding the interest to be added to restitution due to a cancellation of contract and the classification of damages for delay, etc.;

A. When one of the parties cancels a contract, each party shall pay the other party interest in addition to the money to be returned. The interest added here falls within the scope of restitution, and does not fall within the nature of restitution of unjust enrichment (see Supreme Court Decision 2000Da9123, Jun. 9, 200). Therefore, if there is a special agreement between the parties as to the interest, the rate of the agreement shall be applied first, and if there is no agreement, the rate of the agreement shall be applied first, and there is no interest rate in civil or commercial interest. On the other hand, as for the period after the duty to return was delayed, the interest rate on the repayment obligation shall be applied. In addition, the interest rate for delay shall be applied if there is a separate agreement between the parties, and even if it is lower than the statutory interest rate, the interest rate shall be applicable (see Supreme Court Decision 95Da26797, Oct. 12, 195).

Meanwhile, in a case where there is an agreement between the parties with respect to the interest to be added to the money to be returned at the time of cancelling a contract, it conforms to the intention of the parties to deem that the agreement was agreed on the rate of delay compensation, barring any special circumstances (see Supreme Court Decision 2006Da14363, Apr. 24, 2008, etc.). However, in a case where the agreement rate is lower than the statutory interest rate, it is reasonable to deem that the agreement can claim damages for delay at the statutory interest rate, instead of the agreement rate. Even in a case where the agreement is reached to exempt the obligation to pay the interest to be added to the money to be returned at the time of cancelling a contract, if the obligation to return the money is in a state of delay, it is reasonable to view that it is in accordance with the principle of logic and equity (see Supreme Court Decision 2009Da85342, Dec. 24, 2009, etc.).

B. Examining the judgment of the court below in accordance with the above legal principles, the part concerning the Defendant’s obligation to return the sale price (i.e., the remainder of the original obligation excluding the obligation to pay penalty) is partially erroneous as follows.

(1) First of all, interest accrued during the period from the payment date of the purchase price to April 1, 2009 due to the cancellation of the sale contract in this case from the payment date of the plaintiff et al. shall be subject to an agreement of 3% per annum under Article 3 (3) of the contract in this case. The conclusion of the court below is the same for the above period. Therefore, there is no error of law by misunderstanding the legal principles as to interest to be added to money to be returned to the original state due to the cancellation of the contract in this case,

(2) However, the judgment of the court below on the rate of delay damages after the plaintiff et al. claimed the return of each of the above sales proceeds and the defendant delayed payment is not acceptable for the following reasons.

First, in light of the reasoning of the judgment below and the records, it can be seen that there was a separate agreement on the rate of delay compensation applicable to the delay of the contract between the plaintiff and the defendant. Article 3 (3) of the contract of this case sets the interest rate to be added to the sale price to be returned to the buyer at the time of termination of the contract as 3% per annum, and does not use the terms such as "interest" or "payment" or "compensation", and does not mention "performance delay" at all. If the defendant seeks to apply the rate of delay compensation which is lower than the statutory interest rate compared to the case of restitution as well as delay of the contract of this case, the contract of this case was stipulated as well as the penalty to be paid to the buyer at the time of the cancellation of the contract of this case. In light of this, Article 3 (3) of the contract of this case is a special agreement on Article 548 (2) of the Civil Code, and it is reasonable to view the rate of delay payment from the time when the contract of this case was cancelled to the extent of delay payment.

Meanwhile, according to the facts found by the court below, the copy of the complaint of this case seeking the cancellation of the sales contract of this case and payment of the sale price, etc. was served on the defendant on March 25, 2009, and accordingly, the sales contract of this case was cancelled on April 1, 2009 after three months from the scheduled date of occupancy of the apartment of this case, and the defendant delayed the duty to return the sale price to the plaintiff et al. from April 2, 2009, the following day.

Therefore, from April 2, 2009 to April 2, 2009, the defendant is liable to pay damages for delay calculated by adding 5% interest rate to the civil interest rate as claimed by the plaintiff, etc., until it is deemed reasonable for the defendant to dispute about the existence and scope of the obligation to pay for sale proceeds to the plaintiff, etc.

Nevertheless, the lower court determined that, even after the Defendant’s obligation to return the sale price was delayed, the rate of 3% agreement per annum under Article 3(3) should be applied to delay damages for the sale price, and accordingly, added damages for delay by applying the rate of 3% per annum from April 2, 2009, which is the date on which the Defendant was liable for delay of the sale price, until the dispute over the existence and scope of the Defendant’s obligation to return the sale price is reasonable.

Such judgment of the court below is erroneous in the misapprehension of legal principles as to the rate of delay damages to be added after the interpretation and delay of interest agreement which is lower than the statutory interest rate, which affected the conclusion of the judgment. The ground of appeal pointing this out is with merit within the scope of

3. Regarding the interpretation and application of Article 3(2) of the Promotion Act

A. Article 3(2) of the Promotion Act provides that “When the appellate court maintains the claim amount cited by the first instance court as it deems reasonable to dispute on the existence or scope of the obligation, the part refers to when there are reasonable grounds for the debtor’s assertion as to the existence or scope of the obligation.” Thus, the issue of whether it is reasonable to dispute as above is about the fact finding and evaluation of the court concerning the pertinent case (see, e.g., Supreme Court Decisions 99Da20155, Feb. 25, 2000; 2004Da39092, Nov. 25, 2005). However, in a case where the appellate court maintains the claim amount cited by the first instance court as it is, it is reasonable for the defendant to claim the existence and scope of the obligation to perform the above cited amount in the appellate procedure, barring any special circumstances (see, e.g., Supreme Court Decision 2002Da34581, Sept. 10, 2002).

B. After accepting the reasoning of the judgment of the court of first instance, the court below rejected the Defendant’s assertion that it is unlawful to exercise the right of rescission without providing performance despite the Plaintiff, etc.’s obligation to pay part payments and remainder of the sales contract at the time of the cancellation of the sales contract of this case, on the ground that the exercise of the right of rescission is an exercise of the right of rescission under Article 2(3) of the sales contract of this case, and thus, it is unnecessary to provide such performance, and it cannot be deemed that there was such obligation because the period during which the obligation to pay part payments and the remainder payment is not due at the time of the cancellation of the sales contract of this case. In addition, with respect to the Defendant’s assertion that setting 10% of the total amount of the supply price as the penalty should be unfairly reduced, the court below also determined that the determination of the amount equivalent to 10% of the total purchase price as the estimated amount of compensation is a general business practice. As a result, the court of first instance maintained the amount of the sale price and

In light of the aforementioned legal principles, the first instance court, and the reasoning and records of the judgment below, it is reasonable for the Defendant to dispute the existence or scope of the obligation to pay the purchase price and the claim for penalty of the Plaintiff, etc. until the date of the judgment of the first instance. However, since the Defendant, after appeal, rejected the assertion that there is no reasonable ground as to the existence or scope of the obligation to pay the purchase price and the penalty, it cannot be said that there is no special circumstance to view otherwise. Accordingly, with respect to the sale price and the penalty that the lower court maintained the amount of the first instance judgment from January 30, 2010 to the date of full payment, damages for delay shall be added at the rate of 20% per annum as stipulated in the Promotion Act from January 30, 2010 to the date of full payment.

Nevertheless, during the period from the date following the date of sentencing the first instance judgment to the date of sentencing the lower judgment, the lower court deemed reasonable to have disputed the existence and scope of the Defendant’s obligation to pay the sale price and penalty, thereby adding damages for delay at the rate of 20% per annum from May 21, 201, which is the following day of the lower judgment.

In so determining, the lower court erred by misapprehending the legal doctrine on the interpretation and application of Article 3 of the Promotion Act, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit within the scope of the above recognition.

4. Conclusion

Accordingly, the part of the judgment of the court below against the plaintiff et al. equivalent to the amount that the defendant should additionally pay is reversed, and the part on the reversal is sufficient for the Supreme Court to render a direct judgment. Accordingly, the decision of the court below to issue a self-determination order for its payment.

In other words, the defendant is obligated to pay damages for delay at the rate of 2% per annum (5% per annum - 3% per annum) from April 2, 2009 to January 29, 201, which is the date on which the judgment of the court of first instance was rendered on April 2, 2009 to the plaintiff et al. for each of the relevant sales proceeds as stated in the separate sheet, and to pay damages for delay at the rate of 17% per annum (20% per annum - 3% per annum) from the next day to May 20, 2011, which is the date on which the judgment of the court of first instance is rendered, from January 30, 201 to May 20, 201, which is the date on which the judgment of the court of first instance is rendered.

The remaining appeals by the Plaintiff (Appointed Party) are dismissed, and all costs of the lawsuit are assessed against the Defendant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment 1] List of Selections: omitted

[Attachment 2] List: omitted

Justices Kim Chang-suk (Presiding Justice)