[1] The nature of the contract bond when there is an agreement that the contract bond reverts to the contractor where the contract bond is cancelled due to the contractor's cause attributable to the contractor

[2] The case holding that the contract bond has the nature of the liquidated damages, and it is difficult to regard the contract bond as a penalty for delay even if there is no penalty for delay in addition to the contract bond, in the case where the subcontractor is liable for damages within the scope of the contract bond among the damages suffered by the subcontractor due to the cancellation or termination of the contract due to the reasons attributable to the subcontractor in the subcontract, in lieu of such compensation by forfeiture of the contract bond, and where the subcontractor

[1] Where a contract is terminated due to a cause attributable to the contractor who entered into the contract and the terms and conditions of the contract, whether the contract bond belongs to the contractor shall be determined individually in a specific case by comprehensively taking into account the contract agreement and the terms and conditions, etc., and the penalty is presumed to be an estimate of the amount of damages under Article 398(4) of the Civil Act. Thus, special circumstances should be asserted and proved that the penalty for breach of contract is to be interpreted as a penalty for breach of contract.

[2] The case holding that it is difficult to regard the contract bond as a penalty even if there is a penalty for delay, in addition to the contract bond, because the subcontractor's damage within the scope of the contract bond among the damages suffered by the subcontractor due to the cancellation or termination of the contract due to the reasons attributable to the subcontractor, in case where there is an agreement that the subcontractor shall be liable for damages in lieu of such compensation by forfeiture of the contract bond, and in case where the subcontractor is liable for damages in excess of such amount, the contract bond has the nature as the liquidated damages, but it shall be deemed that the subcontractor has the nature as a mere

[1] Articles 105, 398(1) and (4) of the Civil Act / [2] Articles 105, 398(1) and (4) of the Civil Act

[1] Supreme Court Decision 97Da21932 delivered on October 28, 1997 (Gong1997Ha, 3626), Supreme Court Decision 97Da24009 delivered on April 27, 199 (Gong1999Ha, 1329), Supreme Court Decision 2000Da35771 delivered on December 8, 200 (Gong2001Sang, 262) / [2] Supreme Court Decision 97Da2409 delivered on April 27, 199 (Gong199Ha, 1329), Supreme Court Decision 98Da2886 delivered on August 20, 199 (Gong199Ha, 199Ha, 1865) (Gong199Ha, 1865), Supreme Court Decision 200Da35771 delivered on April 27, 2008)

[Judgment of the court below]

Han Construction Co., Ltd.

Seoul High Court Decision 99Na52789 delivered on June 28, 2000

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

The grounds of appeal are examined.

1. As to the cause attributable to the cancellation of the subcontract

Upon examining the reasoning of the judgment below in light of the records, the court below recognized that the subcontracted project in this case was suspended due to the reasons attributable to the non-party Sameng Co., Ltd. (hereinafter referred to as the "Thoeng Co., Ltd.") and it was impossible to achieve the purpose of the contract, and held that the cancellation of the subcontract in this case was legitimate on the grounds that the contract in this case was not related to the non-performance of the obligation under the subcontract in Sameng Co., Ltd., which was temporarily interrupted due to the defendant's default, although the construction in this case was temporarily interrupted due to the defendant's default, and there was no error of law by failing to exhaust all necessary deliberations or by misapprehending the legal principles

2. Regarding the nature of the deposit for performing the contract

A. According to the reasoning of the judgment below, the court below determined that the compensation for delay shall be 1/100 of the construction cost at the time of the subcontract in this case, and it shall be determined that the construction work cannot be completed in the air due to the causes attributable to the third party such as the failure to pay the luminous damage and the provisional seizure, etc., or if it is clearly deemed that the purpose of the contract cannot be achieved due to the violation of the contract terms, the whole or part of the subcontract in this case may be cancelled and terminated. In this case, the contract deposit shall be reverted to the defendant in full, and the contract deposit shall be deemed to have the nature of penalty or sanction, regardless of the existence of the damage, it shall be deemed that the contract deposit belongs to the defendant due to the default of the luminous damage, and the amount shall not be reduced by applying Article 398 (2) of the Civil Act to the estimate of the compensation for delay.

B. Where the contract is terminated due to a cause attributable to the contractor who entered into the contract and the terms and conditions of the contract, whether the contract bond belongs to the contractor shall be determined individually in a specific case by taking into account the contract document and the above terms and conditions, and whether the contract bond belongs to the contractor is a penalty for breach of contract or penalty for breach of contract. Since the penalty for breach of contract is presumed to be an estimate of the amount of damages under Article 398(4) of the Civil Act, special circumstances should be asserted and proved in order to interpret the penalty as penalty for breach of contract (see Supreme Court Decision 200Da35771, Dec. 8, 200

However, according to the terms and conditions of the subcontract agreement of this case (record 62 pages), if Eul fails to complete the construction work within the deadline for completion as stipulated in the contract, the amount calculated by multiplying the contract amount by the liquidated damages rate as stipulated in each number of days (Article 25(1)) shall be paid in cash (Article 26(2)). Separately, Gap shall belong to Gap if the contract is cancelled or terminated due to the reasons stipulated in subparagraphs of Article 26(1). Although the subcontract agreement of this case has an agreement for liquidated damages separate from the contract deposit, Gap shall be deemed to have the contract deposit, the said agreement shall be rescinded or terminated and the contract bond shall be deemed to have been reduced to Gap, unless there are any special reasons to the contrary (Article 25(1)). Since Gap shall be deemed to have the same nature as the contract bond of this case, it shall be deemed to have been removed and deemed to have the same nature as the contract bond of this case where it exceeds the amount of damages arising from the rescission or termination of the contract under Article 26(19(2).

Nevertheless, barring any special circumstance, the court below determined that the contract performance bond of this case was reverted to the defendant due to the non-performance of lusical damage, regardless of whether the contract performance bond of this case was incurred or not, and that the amount cannot be reduced by applying Article 398 (2) of the Civil Act concerning the estimate of damages by analogy of Article 398 (2) of the Civil Act shall not be deemed to have erred by misunderstanding facts against the rules of evidence or by misunderstanding the legal principles concerning the interpretation of the contract bond. The precedents cited by the court below are inappropriate to be invoked in this case due to different cases.

C. However, as seen above, the contract deposit of this case was cancelled due to the reasons attributable to trine mining damage, and according to the court below's approval, the contract deposit of this case is limited to 1/10 of the total construction cost, and the defendant cancelled the subcontract of this case on the grounds of the defendant's non-performance of trine mining damage, and it cannot be deemed that the defendant did not incur any damage due to the suspension of trine mining damage merely because the contract deposit of this case was concluded with Donam Construction Co., Ltd. and completed the subcontract of this case without additional burden of construction cost. Thus, the contract bond of this case is deemed to be excessive, and the above error of the court below in this regard does not affect the conclusion of the judgment. This part of the grounds for appeal is not acceptable.

3. The assertion in the grounds of appeal that the agreement on the contract bond of this case violates the good faith principle or public order and good morals, or comparative negligence should be offset against the damage incurred due to the defendant's negligence, on the premise that the defendant's negligence in the default of the obligation of Samchil Co., Ltd. is concurrent, is merely based on facts different from the facts duly confirmed by the court below, and thus, it cannot

4. Therefore, the appeal is dismissed and the costs of appeal are assessed against the plaintiff who is the appellant. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)