가계약 파기에 따른 가계약금 반환 여부 = A study on the return of provisional contract deposit due to revocation of provisional contract

다국어 초록 (Multilingual Abstract)

Provisional contracts are customarily concluded in the trading world. However, there are various legal problems due to the unclear concept and legal nature. In particular, in cases where the provisional contract is canceled after payment of the provisional contract deposit, many legal disputes related to the return of the provisional contract deposit are occurring.
In the trading world, the agreement between the parties before the conclusion of the main contract is customarily called a provisional contract. Considering these points, provisional contracts were divided into provisional contracts in a broad sense and provisional contracts in a narrow sense. A provisional contract in a broad sense is ‘a provisional agreement that reflects the various interests of the parties before concluding the main contract’, and Legal issues such as refund of provisional contract deposit due to revocation of provisional contract can be resolved according to the legal nature of the contract. A provisional contract in a narrow sense is ‘a provisional agreement to conclude a main contract in the future after agreeing on the essential parts of the contract before concluding the main contract.’ and as a provisional contract in the true sense of the word, its legal nature is similar to that of a unilateral reservation or a bilateral reservation. However, the parties to the provisional contract only bear the obligation to faithfully engage in additional negotiations for the conclusion of the main contract, and do not bear the obligation to conclude the main contract. In addition, the provisional contract deposit has the nature of a deposit money unless there are special circumstances, and if there is a special agreement for cancellation or breach of contract between the parties to the provisional contract, it also has the nature of a cancellation fee or penalty for breach of contract. Therefore, in the case where there is no special contract regarding cancellation between the parties and one party cancels the provisional contract, the provisional contract deposit is subject to return as unjust enrichment.
In the subject judgment, if the agreement between the parties of the provisional contract to use the provisional contract deposit as a cancellation fee is not clearly recognized, the provisional contract deposit has no effect as a cancellation fee and must be returned. It is disappointing in that it explains the requirements for recognizing that there has been a termination agreement regarding a provisional contract without explaining the concept of a provisional contract and its legal nature. However, unlike contract deposits, it is meaningful in that it presents clear standards regarding the issue of return of provisional contract deposit when a provisional contract is terminated in the absence of legislation on provisional contract deposit.

참고문헌 (Reference)

• 1 송덕수, "채권법총론" 박영사 2020
• 2 송덕수, "채권법각론" 박영사 2019
• 3 김선주, "부동산거래에서 가계약의 법적성격 고찰" 한국부동산법학회 23 (23): 49-66, 2019
• 4 곽윤직, "민법총칙" 박영사 2017
• 5 강태성, "민법총칙" 대명출판사 2020
• 6 송덕수, "민법총칙" 박영사 2020
• 7 최창렬, "단순변심에 의한 계약결렬시 지급된 가계약금의 반환관계 - 대상판결 : 대법원 2022. 9. 29. 2022다247187 판결 -" 한국토지법학회 38 (38): 149-196, 2022
• 8 김동훈, "계약체결 전의 법률관계" 한국민사법학회 (36) : 323-350, 2007
• 9 이제우, "가계약의 법적 성질과 입법론적 검토" 한국민사법학회 100 : 619-641, 2022
• 10 양미숙 ; 박신욱, "가계약에 대한 인식과 법적 성격에 대한 고찰" 법학연구소 (93) : 59-96, 2021
• 11 이성진, "가계약(假契約)에 관한 고찰 - 가계약의 개념과 가계약금의 법적 성질 및 유사한 개념을 중심으로 -" 한국토지법학회 37 (37): 189-217, 2021
• 12 백명헌, "가계약 파기에 따른 가계약금 반환의 법률관계" 법조협회 70 (70): 307-333, 2021
• 13 황태윤, "假契約의 槪念과 內容에 관한 考察" 동북아법연구소 8 (8): 299-319, 2015