[1] The legal nature of the above contract to confiscate the contract bond where the buyer paid the contract bond when the contract for the sale of land was cancelled, not only belongs to the seller, but also the buyer agrees to pay damages to the buyer due to the cancellation of the contract, and the buyer agrees to pay damages to the buyer

[2] The validity of a standardized contract clause that unfairly waives the customer's right to restitution due to the cancellation of the contract (negative)

[3] The case holding that the provisions for forfeiture of down payment shall be null and void in violation of the Regulation of Standardized Contracts Act, in case where the Korea Land Corporation prescribed that the contract deposit equivalent to 10% of the purchase price paid by the buyer shall be reverted to the Korea Land Corporation, which is the seller, regardless of whether there is any cause attributable to

[1] Where the contract for the sale of land is cancelled, the contract bond paid by the buyer shall be attributed to the buyer, and where the buyer agrees not to exempt the buyer from the liability for damages incurred by the buyer due to the rescission of the contract, the confiscation of the above contract bond has the nature separate from the compensation for damages incurred by the cancellation of the contract. Therefore, it is difficult to regard the provision for the forfeiture of the contract bond as the scheduled compensation for damages in the ordinary sales contract, and it is reasonable to deem that the buyer has the nature of the so-called penalty, which indirectly forces the buyer's execution of the contract, separately from the fact that the buyer is liable for damages to the buyer in the event of the buyer's breach of the contract.

[2] In light of Articles 6(1), 6(2), and 9 subparag. 3 of the Regulation of Standardized Contracts Act, a standardized contract clause that unfairly waives a customer's right to restitution due to the cancellation of a contract shall be presumed to be unfair disadvantageous to the customer, and shall be deemed null and void as it goes against the principle of good faith.

[3] Where the Korea Land Corporation prescribed that a contract bond equivalent to 10% of the purchase price paid by a buyer should be reverted to the Korea Land Corporation, regardless of the existence of any cause attributable to the buyer when the land sale contract was cancelled, the provisions for forfeiture of the down payment are presumed to be unfair and unfair as a provision unilaterally unfavorable to the buyer who is the customer, and thus are contrary to the principle of trust and good faith or to unfairly waive the customer's right to restitution when the contract was cancelled, and thus, are invalid in violation of the Regulation of Standardized Contracts Act.

[1] Articles 105 and 398 of the Civil Act / [2] Articles 6, 8, and 9 subparag. 3 of the Regulation of Standardized Contracts Act / [3] Articles 6, 8, and 9 subparag. 3 of the Regulation of Standardized Contracts Act

[1] [2] [3] Supreme Court Decision 97Da56969 delivered on April 24, 1998, Supreme Court Decision 97Da40131 delivered on December 23, 1998 (Gong1999Sang, 220) / [2] Supreme Court Decision 93Da30082 delivered on May 10, 1994 (Gong1994Sang, 1641) 96Da19758 delivered on September 10, 1996 (Gong196Ha, 309) Supreme Court Decision 98Da3697 delivered on December 23, 1998

Plaintiff (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Korea Land Corporation (Law Firm Central Patent Office, Attorneys Lee Byung-ho et al., Counsel for the plaintiff-appellant)

Daegu High Court Decision 98Na728 delivered on June 17, 1998

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

The grounds of appeal are examined.

1. On the second ground for appeal

According to the reasoning of the judgment below, the court below held that when the contract of this case was cancelled between the plaintiff and the defendant, the contract bond paid by the plaintiff will be attributed to the defendant, and the plaintiff shall not be exempted from the liability to compensate for the damage suffered by the defendant due to the cancellation of the contract. Thus, the above provision of forfeiture of the contract bond has a nature separate from the damages arising from the cancellation of the contract. Therefore, it is difficult to regard the above provision of forfeiture of the contract bond as the liquidated damages in the ordinary sales contract, and it is reasonable to judge that the plaintiff belongs to the defendant separately from the liability for damages incurred by the violation of the contract, thereby imposing sanctions on the plaintiff, and at the same time imposing sanctions on the plaintiff by indirectly compelling the plaintiff's contract performance. In light of the records, there is no error in the misapprehension of legal principles as to the liquidated damages or the liquidated damages as alleged in the grounds for appeal. The argument in this regard is not acceptable.

2. On the first and third grounds for appeal

Article 6 (1) of the Act on the Regulation of Terms and Conditions (hereinafter referred to as the "Terms and Conditions Regulation Act") provides that "any clause which has lost fairness against the principle of trust and good faith shall be null and void." Article 6 (2) provides that "if a standardized contract provides any of the following matters, it shall be presumed that the standardized contract has lost fairness." Article 9 provides that "any clause which is unreasonably unfavorable to a customer shall be null and void." Article 9 provides that "any clause which falls under any of the following subparagraphs in the special agreement concerning the cancellation or termination of a contract shall be set forth "..........." subparagraph 3 provides that "a clause that excessively imposes a customer's duty to restore due to the cancellation or termination of a contract shall be excessively borne by the customer or unreasonably waives his/her right to restitution without reasonable grounds." Thus, any standardized contract that unreasonably gives the customer's right to restitution due to the cancellation of a contract shall be presumed to be unfair disadvantageous to the customer, and shall be null and void as it goes against the principle of trust and good faith (see, 2..........

According to the reasoning of the judgment below, in light of the contents and form of the sales contract of this case, the contract bond clause of this case (hereinafter this case) shall be deemed terms and conditions. (1) The contract bond of this case is equivalent to 10% of total purchase price, which is determined as estimated damages in ordinary transactions. (2) Article 16 (2) and (4) of the sales contract of this case provide that the contract of this case shall be effective when the contract is terminated due to reasons attributable to the buyer, regardless of whether the contract is rescinded due to the reasons attributable to the buyer, the contract bond of this case shall be deemed to be vested in the defendant. In light of the purport of Article 12 of the sales contract of this case and Article 14 of the contract of this case and Article 10 of the contract of this case, the buyer shall not be held liable for damages to the buyer immediately after the cancellation of the contract of this case, and there are no errors in the misapprehension of legal principles as to the contract bond of this case as well as any other reasons attributable to the seller, such as cancellation or cancellation of the contract bond of this case.

The Supreme Court precedents pointing out the grounds of appeal are not appropriate to be invoked in this case, because they were against the advance payment for the application for parcelling-out or against the matters not asserted on the Act on Regulation of Terms

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Cho Cho-Un (Presiding Justice)