단순변심에 의한 계약결렬시 지급된 가계약금의 반환관계 - 대상판결 : 대법원 2022. 9. 29. 2022다247187 판결 -

Although there is no substantive enactment regarding provisional contract in the Civil Code, a provisional contract means a temporary agreement in the course of contract negotiations and various legal disputes arise due to the increasing practice of paying provisional contract amount in order to secure preferential status over other competitors in practice. The target judgment is a case that the plaintiff abandoned the conclusion of the main contract by a simple change in mind and requested the return of the provisional contract amount after signing the provisional contract for the lease of the property for a lease deposit of 870 million won and remitting the provisional contract amount of 3 million won. In this regard, the original trial dismissed the plaintiff's claim by identifying the provisional contract amount as a cancellation money, but the Supreme Court has recognized the claim for the return of unfair profits because the provisional contract amount should be regarded as an evidential money unless there is an explicit agreement that the provisional contract amount should be a cancellation money. The decisive difference between the original judgment and the Supreme Court ruling arises from the difference in the legal nature of the provisional contract amount by an implied expression of intention. Unlike the original judgment, the Supreme Court has recognized only the nature of the evidential money unless there is an explicit agreement to make it a cancellation money, since Article 565 of the Civil Code on the contract amount is not applicable to the provisional contract amount. In addition, the Supreme Court considers that the provisional contract amount should be returned to the provider, even if the contract is broken down by the plaintiff's simple change in mind, as long as it is recognized as an evidential money that the plaintiff has an intention to conclude the contract with respect to the provisional contract amount. It may be considered unreasonable that the provisional contract amount can be returned even if the contract is not concluded by a simple change in mind after the provisional contract amount is paid to show the intention to conclude the contract. However, the seller has the advantage of excluding contract subjects for information collection purposes by receiving a provisional contract amount that has the nature of an entrance fee. From the point of view of a real estate agent, there is an advantage in that it is easy to recommend an evidential money that is not forfeited even without signing a contract, while obtaining the effect of an exclusive brokerage contract by having the purchaser pay a provisional contract amount. From the point of view of the purchaser, he or she prefers a provisional contract amount with the nature of an evidential money, as it can be returned without having to conclude a contract, while demonstrating the intention or ability of the purchaser to conclude a contract. Therefore, unless there is an explicit agreement to make the provisional contract amount a cancellation money, the target judgment that recognizes only the nature of the evidential money is considered reasonable. However, if only the provisional contract amount is sent and the provisional contract is acknowledged by an implied expression of intention, it has only the nature of the evidential money, so there is a possibility of error regarding the expression of intention between the parties. Therefore, it is necessary to examine how to make a standard provisional contract form available even with regard to agreements based on provisional contract amount.