표준 부동산매매계약상 해제권유보조항과 해약계약금 해제 - 해제권유보조항의 독자성을 중심으로 -

Article 565, Paragraph 1 of Civil Act assumes down payment as break-up fee and sets the period for the termination right. Due to ambiguity around whether break-up fee agreement is a real contract, complex discussions arise around the feasibility of the right of termination; additionally, there are disagreements on how commencement of performing obligation should be interpreted. Even for real property sale and purchase agreements that include the Break-up Fee Termination Clause, which is similar but not identical to Article 565, Paragraph 1, of Civil Act, the Supreme Court appears to apply the same interpretation of the break-up fee agreement regarding Article 565, Paragraph 1 of Civil Act. However, in the case of real property sale and purchase agreements with the Break-up Fee Termination Clause, the same interpretation from Article 565, Paragraph 1 of Civil Act should not be applied. Therefore, when the down payment is paid partially or not paid in full, the purchaser may terminate the sale and purchase agreement by paying the rest or all of the down payment to the seller, and the seller may terminate the sale and purchase agreement by returning the down payment already received (in case part of the down payment was paid) in addition to paying the down payment in full. Furthermore, the Break-up Fee Termination Clause sets the period for the right to terminate differently compared to Article 565, Paragraph 1 of Civil Act. Thus, for real property sale and purchase agreements with the Break-up Fee Termination Clause, the period for the right to terminate should be interpreted as “until the full payment of the interim payment or balance on the due date.” This paper argues, for real property sale and purchase agreements with the Break-up Fee Termination Clause, the existing interpretation regarding Article 565, Paragraph 1 of Civil Act should not be applied and alternatively provides a concrete interpretation based on the Break-up Fee Termination Clause.