解約金 契約의 法的 性質 - 대상판결 : 대법원 2015. 4. 23. 선고 2014다231378판결 -

Abstract

Down payment is money or other valuable thing to be paid at the time of contracting, which has the nature of down payment as an evidential contract, cancellation and default. Article 565, the Civil Code, has a voluntary provision presuming a down payment contract as a cancellation fee unless otherwise provided. However, a majority theory and Supreme Court’s precedent consider the down payment contract a real contract, which has a problem contradicting the principle of contract observance, pacta sunt servanda. As for the legislative validity of such Article 565, the Civil Code, there is an opinion assessing that positively based on that a cancellation fee is cost to secure the chance of changing one’s mind and the confiscation of downpayment and the cancellation fee system of repayment of double the amount are practices firmly established in our society. However, the cancellation of a contract by cancellation fee has a problem of weakening the binding force of the contract by letting a party breaking away from the contract relation regardless of any liability cause. In addition, the provision of presuming as cancellation fee, Article 565, the Civil Code, if the legal nature of down payment contract is understood as a real contract, comes to see that the down payment contract would be constituted only when the entire amount of down payment is delivered. If so, when there is only giving up delivered amount, the contract can be cancelled, so the binding force of the contract becomes much weaker. There is an opinion that cancellation fee contract is a real contract based on the provision presuming it as cancellation fee in delivering that in the name of down payment at Article 565, the Civil Code. However, the above provision is a voluntary provision to be applied when there is no other agreement presuming an ordinary circumstance down payment is paid at the time of contracting, so it cannot be seen as cancellation fee contract being constituted only cancellation fee is delivered. Since the Roman law, even the type of a real contract accepted only at gratuitous contracts such as interest-free loan for consumption, loan of use, gratuitous deposit and pledge contract etc. is provided as a consensual contract at current civil code, so it is not necessary to accept the down payment contract at a sales contract as a real contract. If at an after payment agreement of down payment, cancellation fee is revoked without securing it at hand as down payment is not delivered, the other party is forced to suffer an unfair result, so there is an opinion seeing that as a real contract in the respect of adjusting an interest. However, if a purchaser makes cancellation fee revocation, there is no case of securing down payment at hand, and if as precedent, the money becoming the basis of cancellation fee is seen as an agreed down payment, not a delivered down payment, it cannot be seen as injust. Thus, by minimizing the unreasonable aspects of the cancellation fee system, at Article 565, the Civil Code, going against the principle of contract observance and breaking away from the concept of a real contract accepted only at some gratuitous contracts, cancellation down payment as an onerous contract should be seen as a consensual contract. 2015 Supreme Court precedent, in relation to the interpretation of Article 565, the Civil Code, says that when there is the installment payment or after payment agreement of down payment, so long as the deliverer does not pay the balance or the whole of down payment, down payment contract is not constituted, so parties cannot voluntarily cancel the contract. However, the money becoming the basis of cancellation is seen as an agreed down payment, not an actually delivered down payment, as a result, it can be seen as contradictory to the theory of a real contract. But, at the above case, the contract was cancelled by the defendant’s refusal of performance, so there was a special agreement of penalty worth down payment as expected damages, that is an amount defined by the special agreement, which has no relation with the delivery of cancellation down payment. The above judgment, adhering to the delivery nature of cancellation contract, says the balance of down payment should be paid as the exercise requirement of cancellation right at the cancellation contract of installment payment, but the amount becoming the basis of cancellation fee is an agreed down payment for fear of the binding force of contract being weakened, which is actually the same as an opinion of consensual contract. Then, it will be valid to generally accept the nature as a consensual contract for cancellation contract, without approaching an unnecessary detour while sticking to the premise that cancellation contract is a real contract.