계약금반환
1. Of the judgment of the court of first instance, the part against the plaintiff ordering payment shall be revoked.
The defendant shall make the plaintiff 16,846.
1. The reasons why this Court shall explain this part of the facts of recognition are as follows: (a) except that the Plaintiff’s spouse E and resident registration together are deemed to be “the Plaintiff’s spouse E and resident registration together” in the fifth 10th of the judgment of the court of first instance; and (b) it is identical to the corresponding part of the judgment of the court of first instance, and therefore, (c) it is citing
2. The parties' assertion
A. The Plaintiff’s claim for the instant sales contract is that the penalty equivalent to 10% of the total supply price stipulated in Article 9(5) (hereinafter “instant penalty”) is not a penalty for breach of contract, but an amount of damages.
Considering that the Plaintiff’s mother-friendly C’s purchase of other apartment units on November 1, 2013, which was subject to restriction on lots, and entered into the instant sales contract, and the sales contract was cancelled for a short period after the conclusion of the instant sales contract, and the Defendant could enter into the sales contract immediately with the reserve occupant after the cancellation of the instant sales contract, the amount of the damages compensation is unduly excessive. As such, the Defendant should return KRW 23,585,310 [50,539,00 (the instant sales contract payment extension contract) - KRW 16,845,70 (the instant sales contract payment extension contract amount) - KRW 10,107,90 (30% of the estimated amount of damages) as the amount calculated by deducting 30% from the estimated amount of damages paid to the Plaintiff.
B. Defendant’s assertion 1) The penalty of this case is a punitive sanction against the party who concluded a contract for sale after concealing it and winning the application for parcelling-out even though there is no qualification for parcelling-out as required by the Housing Act and the Housing Supply Regulations, and thus, it is not an estimate for damages. Therefore, the penalty of this case cannot be reduced pursuant to Article 398(2) of the Civil Act, and the Defendant already returned the remainder after deducting the penalty from the down payment. 2) Family affairs and the penalty of this case is interpreted as the scheduled damages, even if the penalty of this case is interpreted as the scheduled damages.