가계약 파기에 따른 가계약금 반환의 법률관계

Abstract

In reality, provisional contracts are signed prior to the main contract and provisional down payments are received in many cases. In particular, as real estate prices continue to rise, provisional deposits tend to be used as a means to preempt the sale. However, the problem is that there is a lack of agreement on how to deal with the provisional down payment if the contract is not concluded. Therefore, the legal relations of returning the provisional down payment due to the termination of provisional contracts depends on how the provisional contract is interpreted in individual cases. In fact, several courts broadly define provisional contract as “an agreement that reflects various interests of the parties before reaching the real contract”, and judge that the legal nature and effect of provisional contracts should be grasped through interpretation of the parties' intention. As such, it is impossible to conceptualize provisional contract in one form, and it should rather be classified into several types considering the specificity of the contract and the binding intention of the parties. Accordingly, the writer largely divided provisional contracts into [1] the case where it is actually just the main contract and [2] the case where the main contract is scheduled to be concluded. Then the writer divided the latter case into ① reservation of sales and ② phase of discussion(MOU), and sought for a method to resolve the provisional down payment dispute for each type. Firstly, in the case of [1], the dispute can be solved by applying Article 565 (1) of the Civil Code. Next, in the case of [2]-①, provisional deposits should be regarded as cost of not exerting the right to complete reservation. Lastly, in the case of [2]-②, provision down payments must be returned since they are unfair profits if the formal contract is not concluded. This paper is meaningful in the way that it attempted to categorize provisional contracts and arrange the legal relations due to abrogation of provisional contracts based on court rulings in a situation where there is practical confusion about the legal composition of provisional contracts.