가계약과 가계약금 계약의 법리

초록

Although provisional contracts are not explicitly stipulated in the Civil Act, various legal disputes regarding the return of provisional deposits are occurring as the transaction practice of paying a provisional deposit is increasing in order to secure a preferential position over other competitors in the process of contract negotiations. The reason why many legal disputes about provisional deposit occur is that the legal principle of the contract is attempted to be applied under the premise that the provisional contract is also a contract, or that the provisional contract to enter into this contract and the provisional deposit contract to supplement the binding force of the provisional contract are not distinguished. Also, it may often occur because the problem of what is the legal nature of a provisional contract or provisional deposit contract and the interpretation of legal acts related to a specific contract or provisional deposit contract are confused. A provisional contract can be seen as a provisional agreement in which an agreement cannot be reached on essential or important matters constituting the contents of the contract during the process of establishment of the contract. Therefore, a reservation or conditional contract cannot be referred to as a provisional contract in that a contract is established, and a contract or a memorandum of understanding in the preparatory stage can be viewed as having the legal nature of a provisional contract. Meanwhile, the provisional deposit contract is a type of contract that is established separately from the provisional contract and is concluded to supplement the legal binding force of the provisional contract. Since the provisional deposit contract does not presuppose the existence of the provisional contract, it cannot be said to be a subordinated contract of the provisional contract, nor be said to be a real contract, but a consensual contract. The provisional deposit contract should be interpreted independently in light of the purpose or function of signing the provisional deposit contract because the presumption provisions of Article 565 of the Civil Act, which presuppose the establishment of the contract, do not apply as it is. The purpose of concluding a provisional deposit contract is to show the intention to conclude a contract or to secure a preferential position compared to a third party in the negotiation process for concluding the contract. Therefore, the provisional deposit contract is a security deposit for faithful negotiations in case of double negotiation with a third party who is not a party to the provisional deposit contract with respect to the contract in the preliminary stage, leaking information obtained during contract negotiations, or refusing to negotiate the contract due to a simple change of mind. As such, its essence can be seen as a penalty agreement. Therefore, the specific legal nature of the provisional contract should be identified through the interpretation of legal acts.

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