When performing real estate transactions, it is a common and wide practice to make a partial payment out of full contract money for such purposes as an ‘earnest money’. With regard to this earnest money, contracting parties are often seen as agreeing to reserve a contracted right to recession, which is also referred to as Contract of earnest money. The Korean Civil Code Article 565 provides a paragraph in which earnest money is presumed to be Cancellation Fee . In this paragraph is written ‘if (..) delivered’ verbatim, whose wording led majority scholarly opinion to interpret contract of earnest money as a substantial contract. In fact, when a contract of cancellation fee(a promise to reserve a contracted right to recession) was made between contracting parties, but when such earnest money was not delivered in actuality, this becomes a source of complicated controversy in terms of the contract’s nature of substantial contract and validity of cancellation fee contract. Indeed, it is not new to see these substantial contract theory and consensual contract theory have been standing up against each other. This paper, however, proposes to approach the case from a fresh new perspective, which is a ‘interpretaion of legal act’ (contract interpretation) . In essence, this case concerns whether a contract of cancellation fee is valid, hence, a matter of contract interpretation. If the case is approached from a contract interpretation, it can be substantiated in more detail and be spared from theoretical contradictions, leading to a more translucent explanation. A dominating interpretation of the Supreme Court’s ruling of this case was that the Court does not see that before the deliverance of the earnest money following writing of the contract, a contracted right to recession should occur. However, a comparative analysis of the Supreme Court’s ruling with the ruling from a lower court in terms of reasoning structure, the interpretational attitude presented by the Supreme Court seems to be ‘unclear’.
[사실관계 및 소송의 경과]
Ⅱ. 소송의 경과
Ⅱ. 계약금의 의의 및 민법의 규정태도
Ⅲ. 계약금계약의 요물계약성과 계약금 미지급 단계의 법률관계에 관한 학설 및 그에 대한 검토
Ⅳ. 법률행위 해석의 관점에서 본 해약금 약정의 효력
Ⅴ. 대상판결에 대한 분석 및 평가
Ⅵ. 비교판결(대법원 2015. 4. 23. 선고 2014 다231378 판결)