가계약(假契約)에 관한 고찰 - 가계약의 개념과 가계약금의 법적 성질 및 유사한 개념을 중심으로 -

Abstract

The legal meaning of the provisional contract may be viewed as the basis of contract negotiations or may be understood as reservations, but the interpretation that the provisional contract may have the effect of a formal contract is considered unreasonable. Since the ultimate purpose of a provisional contract is to establish a formal contract, if the provisional contract is interpreted as a formal contract, the provisional contract cannot be recognized for its existence value. And when the form of a provisional contract is taken, but its actual content is interpreted as the same as a formal contract, it should be excluded from the scope of the concept of a provisional contract and its establishment. In other words, in terms of the concept of a provisional contract, it cannot be regarded as the legal meaning of the establishment of a formal contract or the occurrence of its effect. Provisional contracts can be interpreted in a variety of legal meanings, so even if provisional contract payments are issued, it is necessary to understand what the meaning of the provisional contract is. The nature of the cancellation fee in Article 565 of the Civil Act is a rule that corresponds to an exceptional situation in which a contract that has been established can be disqualified, so it cannot be considered that it is reasonable to expand and apply analogy to provisional contract fees without a reasonable reason or legal basis. Therefore, it is not only unfair to view the provisional down payment as a cancellation fee, but it is also necessary to clarify whether or not the provisional down payment has the nature of the cancellation fee. For provisional contracts, it is necessary to consider the formation of case law suitable for transactional practices and legislation for provisional contracts.