(영문) 서울중앙지방법원 2017.4.20. 선고 2016가합533462 판결

1. The defendant shall pay to the plaintiff 50 million won with 5% interest per annum from June 16, 2016 to April 20, 2017, and 15% interest per annum from the next day to the day of complete payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit shall be borne by the Plaintiff, while the remainder shall be borne by the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 2,00,000,000 won with interest of 15% per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

Reasons

1. Basic facts

A. A. Around May 19, 2015, the Plaintiff entered into a sales contract with the Defendant and the Dobong-gu Seoul Metropolitan Government (Seoul Dobong-gu Factory Site B 12,518m and its ground buildings (Seoul-gu) with the Defendant for the purchase price of KRW 44.5 billion (hereinafter “instant sales contract”). The Plaintiff agreed to pay the remainder of KRW 2 billion on the date of the contract, and the remainder of KRW 42.5 billion on August 20, 2015, respectively. The Plaintiff paid the down payment of KRW 2 billion to the Defendant on May 19, 2015.

B. As the Plaintiff failed to pay the remainder by the agreed date of the remainder payment, the Plaintiff and the Defendant extended the remainder payment date on September 1, 2015 to October 31, 2015, and the Plaintiff additionally paid KRW 500 million as the down payment, and the Plaintiff entered into an additional agreement to cancel the contract without the peremptory notice if the remainder cannot be paid by October 31, 2015 (hereinafter referred to as the “additional agreement”), and on September 1, 2015, the Plaintiff additionally paid KRW 500 million to the Defendant as the down payment (hereinafter referred to as “the down payment in this case”), and on September 1, 2015, the Plaintiff additionally paid KRW 2.5 billion to the Defendant as the down payment (hereinafter referred to as the “the down payment in this case where the Plaintiff and the Defendant received the down payment as above”).

C. The Plaintiff failed to pay the remainder to the Defendant by October 31, 2015. On November 2, 2015, the Defendant notified the Plaintiff that the instant sales contract was rescinded due to the Plaintiff’s nonperformance of the obligation to pay the remainder.

[Ground of recognition] Facts without dispute, Gap evidence 2, 3, 6, Eul evidence 1, the purport of the whole pleadings

2. The parties' assertion and judgment

A. The parties' assertion

The Plaintiff is deemed to have scheduled the amount of damages, and considering various circumstances, such as the circumstance that the Plaintiff paid additional down payment KRW 500 million or the fact that the Defendant did not cooperate in receiving a loan for the payment of the remainder, the Plaintiff asserts that the amount of the said damages should be reduced to KRW 500 million, an appropriate amount, pursuant to Article 398(2) of the Civil Act, should be reduced to the Defendant, and that the remainder of KRW 2 billion, excluding the estimated amount of damages, out of the down payment, should be returned to the Defendant.

In this regard, the defendant asserts that since the down payment of this case is not the estimated amount of compensation for damages, it cannot be reduced pursuant to Article 398 (2) of the Civil Code, and even if it is the estimated amount of compensation for damages, it cannot be deemed unreasonable.

B. Determination

1) The nature of the down payment of this case

As penalty is presumed as liquidated damages under Article 398(4) of the Civil Act, in order for the penalty to be interpreted as penalty for breach of contract, special circumstances should be proved. In addition to the name or phrase used in relation to the penalty at the time of concluding the contract, the legal nature of the penalty should be reasonably determined by comprehensively taking into account the following: (a) the economic status of the contracting party; (b) details and details of the contract; (c) course of negotiations; (d) details and negotiation process; (e) the parties’ principal purpose of the contract; (b) the obligation to guarantee performance through penalty; (c) whether the parties may separately claim damages other than penalty in the event of nonperformance; (d) the amount of penalty or the ratio of the amount of the penalty to the total amount of the damages; (e) the size of the damages anticipated to occur due to nonperformance; and (e) the transaction practices at the time (see, e.g., Supreme Court Decision

In the instant case, the Plaintiff and the Defendant agreed to confiscate the down payment of the instant case in a case where the Plaintiff failed to perform the obligation to pay the remainder by the date of the remainder payment extended by the Plaintiff under the instant additional agreement. This constitutes an agreement to compensate for damages and is presumed to be an estimate of the amount of damages. Considering the following circumstances recognized by the evidence as seen earlier, it is difficult to view that there is any special circumstance to interpret the said penalty as a penalty for breach of contract,

A) In the instant sales contract, the seller shall repay the down payment before the original payment of the remainder, and the buyer shall only waive the down payment and cancel the contract, i.e., the contract for cancellation, and there was no special agreement for the buyer to pay the down payment as penalty. Therefore, even if the Plaintiff failed to perform his obligation, the Defendant can only claim compensation by proving the actual amount of damages, and there was no ground for forfeiture of the down payment. As the Plaintiff did not prepare any balance by the due date, it appears that the Defendant extended the due date for the remainder payment to the Plaintiff, and that the Defendant would particularly confiscate the entire down payment of the instant case regardless of the actual amount of damages when the Plaintiff

B) At the time of the instant additional agreement, the Defendant had extended the payment date of the remainder even after a specific loss was incurred, or even if so, there was no circumstance to compel the Defendant to perform the Plaintiff’s obligation by means of a sanction, such as the occurrence of a large amount of damage, if the Plaintiff failed to perform his obligation to pay the remainder.

C) Damage that may be assumed to occur to the Defendant due to the cancellation of the contract due to the Plaintiff’s failure to perform the obligation to pay the remainder at the time of the instant additional agreement shall be deemed as damage, etc. caused by the Defendant’s failure to obtain the difference between the purchase price of this case and the value of real estate subject to the contract, or the Defendant’s failure to use or profit from other means, such as losing an opportunity to dispose of the said real estate, by concluding the instant sales contract with the Plaintiff. There is no evidence suggesting that there exists such difference, or that the Defendant lost an opportunity to use or profit from the said real estate by other means due to the agreement with the Plaintiff. On the other hand, the instant down payment amount is a large amount of money exceeding 10% of the total purchase price,

D) Although the instant sales contract provides that the Plaintiff and the Defendant may claim damages arising from the rescission of the contract (Article 8(2)), the Defendant may rescind the contract in the event that the Plaintiff did not perform his/her obligation to pay the remainder under the instant additional agreement, and in this case, the Defendant would confiscate the down payment of KRW 2.5 billion, while the content of the instant sales contract conflict with the content of the instant additional agreement. In light of the circumstances surrounding the instant additional agreement, etc., the intent of the parties to the instant agreement to confiscate the down payment under the additional agreement is deemed to take precedence over the details of the instant additional agreement. In the event of the Plaintiff’s nonperformance of obligation to pay the remainder payment, the Defendant would be deemed to have forfeited the down payment rather than holding the right to claim damages under Article 8(2) of the original agreement, which bears the burden of proving the occurrence of damages arising therefrom and the amount of damages. ( Accordingly, the Defendant was able to escape from the burden of proving whether specific losses arising from the Plaintiff’s nonperformance of obligation to pay the remainder payment of the contract

E) Although the instant Additional Agreement states that “the amount of KRW 2.5 billion shall be forfeited as a penalty for breach of contract,” it is difficult to view that the Plaintiff and the Defendant used the phrase “compact penalty” as a penalty for breach of contract, which is imposed in order to enforce performance, separate from the compensation for damages, in view of the aforementioned circumstances.

2) Whether the estimated amount of damages was unreasonably excessive

Article 398(2) provides that the court may reasonably reduce the estimated amount of damages in cases where the estimated amount of damages is unreasonably excessive. Here, "unfairly excessive cases" refers to cases where it is acknowledged that the loss of fairness may result in the loss of fairness in light of the general social norms, taking into account all circumstances, such as the status of the creditor and the debtor, the purpose and content of the contract, the motive behind the liquidated amount of damages, the estimated amount of damages, the ratio of estimated amount of damages to the amount of debts, the estimated amount of damages, the size of expected damages, and the transaction practices at the time (see, e.g., Supreme Court Decision 9Da38637, Jul.

In the instant case, the following circumstances acknowledged by the evidence revealed earlier, namely, ① the instant down payment amount is equivalent to 5% of the total purchase price, but even if so, it is considerably large; ② the remainder payment date extended by the instant additional agreement is about 2 months, and there is no circumstance to deem that the Defendant incurred particularly significant damage due to the Plaintiff’s nonperformance of the obligation to pay the remainder; ③ the Plaintiff did not prepare any balance by the initial agreed payment date; ③ the Plaintiff did not make the instant additional agreement in order to prevent the forfeiture of the down payment already paid, and paid the Defendant the down payment of KRW 50 million additionally to the Defendant; ④ If the Defendant confiscated the said down payment pursuant to the instant additional agreement, the Plaintiff incurred a large amount of loss of KRW 2.5 billion due to the nonperformance of the obligation to pay the down payment under the instant sales contract, even for a period not exceeding six months from the conclusion of the instant sales contract to the cancellation thereof. Considering the aforementioned circumstances, it is reasonable to deem the amount to be unfairly reduced as the down payment amount as the initial KRW 2.5 billion.

3) Sub-decisions

Therefore, the defendant is obligated to pay to the plaintiff 50 million won more than the estimated amount of compensation for the reduced damage out of the down payment received from the sales contract of this case, and to pay damages for delay calculated at the rate of 5% per annum under the Civil Act and 15% per annum under the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings, from June 16, 2016 to April 20, 2017, the date following the delivery date of a copy of the complaint of this case, which is the period deemed reasonable to dispute the existence or scope of the obligation to perform, as requested by the plaintiff.

3. Conclusion

Thus, the plaintiff's claim is accepted on the grounds of the above recognition scope, and the remaining claims are dismissed as they are groundless.