해약금 규정의 역사적 의미와 독일 및 프랑스 민법의 해석

According to Article 565 (1) of the Korean Civil Code, the delivery of the down payment is presumed to be the contract releasing fee unless there is a special agreement between the parties. The majority opinion and the Supreme Court regarding the delivery of the down payment interpret it as a independent and subordinate contract from the main contract. At the same time, it is interpreted as a contract on the need things, assuming that a ‘down payment contract’ has been concluded. However, the logical validity of this interpretation cannot be found in terms of history or comparative law. Under Roman law, the down payment also served as money for evidence of contracts and the contract releasing fee, but it cannot be concluded that the issuance of down payment was viewed as a down payment contract and its nature was viewed as a contract on the need things. It is reasonable to view that the legal effect of the money for evidence of contracts or the contract releasing fee was given to the issuance of the down payment. Also, from the German and French attitudes toward the down payment, which were influenced by Roman law, there is no justifiable basis for making the issue of the down payment a down payment contract or a contracts on the need things. In particular, in the case of non-grant or partial issuance of the down payment, the Supreme Court is showing a contradictory attitude by ruling as if it was in accordance with the consensual contract theory, even though it stood in the position of the theory of contracts on the need things. This entangled interpretation related to the provisions for estimating contract releasing fee arises because the issuance of the down payment was stipulated as a down payment contract. Nowhere in Article 565 Paragraph (1) of the Civil Code can we find the term “down payment contract” and the concept of the establishment or effect of a down payment contract. Even in light of the transaction reality, it is questionable whether the parties to the sales contract intend to sign a separate down payment contract in addition to the sales contract. It can only be regarded as an advance payment, presuming the issuance of a down payment as a contract releasing fee according to the Civil Code. However, it should be interpreted that the issuance of the down payment means that all of the down payment will be issued, and the meaning at the time of the contract should be interpreted as at the time of signing the contract.