계약금 교부의 법적 성질과 그 반환의 법률관계 재해석

Abstract

The major theories and precedents regarding the legal nature of the down payment are identified as an independent contract to be concluded separately from the main contract. On the contrary, it is not a separate contract but a fulfillment of the obligation to pay the down payment determined by the contents of the main contract, and is considered to be the first payment. Article 565 (1) of the Korean Civil Code presumes the grant of the down payment as a cancellation fee. In accordance with the above provisions, if the down payment is 'issued', the main contract could be cancelled by grantor’s 'give up' the down payment and by recipient’s 'repaying' it. In the light of the general principle of interpretation of the law, the legal effect as a cancellation fee is based on the provision of the legal facts, that is, the down payment provided by the above provisions. In reality, the buyer will not be willing to sign a contract for the issuance of the down payment separately from the sale contract. Furthermore, the major theories and precedents do not clearly explain the legal relations of the various phases in which the down payment issued in the execution of the main contract is repaid or returned. According to this, the down payment is paid in accordance with the down payment contract independently established with the sale contract, so the down payment contract shall be deemed to be accomplished and expired and the down payment should be returned to the buyer. But this down payment should be returned, but it is not actually returned, and eventually it is paid for the whole sale price. This interpretation is very unrealistic and circumventive. Rather, the interpretation of the issuance of the down payment as part of the purchase price will simplify and solve the related problem easily. If the buyer completes paying all of the sales price by combining the down payment, intermediate payment, and balance, the seller can register the transfer of ownership. An unrealistic and circumstantial interpretation that the down payment must be returned to the buyer but is covers the sale price is unnecessary. However, according to the major theories and precedents, the down payment can not be a part of the price. Because if the down payment is as a part of the whole price, there is no room for the presumption of cancellation fee by applying the Article 565 (1) of the Korean Civil Act, since the buyer has fulfilled the requirements of the 'initiative to implement' on the above provisions by paying the down payment. However, this interpretation is unreasonable to the confusion on point of time as the legal requirements and the application of the law. Article 565 (1) of the Civil Code of Korea is a provision that can only be applied until a down payment is issued. The 'initiative to implement' on the above provisions means only the execution of the party performed after the issuance of the down payment.