계약금(契約金)의 미지급(未支給) 단계(段階)에서의 계약금계약(契約金契約)과 주계약(主契約)의 효력(效力) 등(等)에 관하여 -대법원 2008.3.13. 선고 2007다73611 판결-

The Korean Civil Code Article 565 Paragraph 1 provides that if one of parties to a contract of sale, at the time of entering into the contract, money or things under the name of down payment, assurance deposit, etc. to the other party, unless otherwise agreed upon between the parties, the deliverer by giving up such money and the receiver by reimbursing double such money, may rescind the contract before one of parties has initiated performance of the contract. Majority scholarly opinions and precedents have defined the nature of such contract as one that is formed only where the earnest money is delivered to the other party. It has also been defined as a contract that is subsidiary to main contracts such as sales or other contracts. According to these opinions, unless one of contracting parties delivers earnest money to the other party, the contract is invalid and then unenforceable. In this case, the Korean Supreme Court held that earnest money must be delivered to the other party to form the earnest money contract, pursuant to legal scholars` majority opinions and its precedents. In its reasoning, however, the Supreme Court stated that if the deliverer does not pay the earnest money agreed upon between the contracting parties, the other party may claim the performance of all or the rest of earnest money, and that if the deliverer does not perform his/her obligation, the other party may rescind the earnest money contract, based on the breach of contract. At first glance, this seems to contradict its reasoning that earnest money contract is formed only when the money was delivered to the other party because if the contract is not formed, the contract cannot have any legal force. In order to address this theoretical problem, some scholars, who endorse the majority opinion, have proposed some solutions, but these opinions have still some problem and do not completely solve it. Therefore, this paper endorsed minority opinions that the earnest money contract is a consensual contract that is formed by only the consent of the two parties. Above all, this paper focused on the legal language of the Paragraph 1 that the delivered earnest money was presumed to reserve the right of cancellation of the main contract. I do not think that it does deny that the earnest money contract may be formed by only the consent of the parties to a contract. The freedom of contract is a fundamental principle of modern contract law. Accordingly, contracting parties can assent to pay the earnest money after the conclusion of the contract; such contract should be respected as a valid contract. It is not strange that the other party can claim the performance of the earnest money because such contract is valid one as well. The remaining problem is when one of parties to a contract can cancel the main contract. This paper proposed that, unless otherwise agreed upon between the parties, any party to a contract cannot exercise the right to cancellation of the main contract if all of the earnest money is not delivered to the other party. This is to balance the paragraph 1, which presumes that the right of cancellation of the main contract occurs when all of the earnest money was delivered to the other party.