(영문) 창원지방법원 2017.04.25 2016재나112



1. All of the lawsuits for retrial of this case shall be dismissed.

2. The costs of retrial shall be borne by the defendant.


1. The following facts are apparent in the records of the judgment subject to a retrial:

The Plaintiff filed a lawsuit against the Defendant to claim the implementation of the procedures for the registration of ownership transfer concerning the real estate listed in the separate sheet (hereinafter “instant real estate”) with this court’s 2014Gadan2803, and the first instance court acknowledged that on July 7, 2015, the Plaintiff and the Defendant entered into a sales contract for the instant real estate on October 28, 2014, and the Plaintiff paid the Defendant the down payment amount of KRW 44 million according to the instant sales contract on October 28, 2014, and that on December 26, 2014, the Plaintiff paid the Defendant the down payment of KRW 376 million deducted from the deposit amount of KRW 20 million on December 26, 2014, and rendered a judgment citing the Plaintiff’s claim.

B. The Defendant appealed against this judgment and appealed to this Court No. 2015Na6238, but on January 28, 2016, the judgment subject to a retrial was rendered to dismiss the Defendant’s appeal.

C. The Defendant, who was dissatisfied with the judgment subject to a retrial, appealed by Supreme Court Decision 2016Na11868, but on June 10, 2016, the judgment subject to a retrial became final and conclusive after the final judgment of dismissal of a final appeal was rendered.

2. On November 6, 2015, the Plaintiff claimed the recovery of deposit money on November 6, 2015, against which the Defendant’s assertion as to the grounds for a retrial had all recovered KRW 376 million.

If the defendant knew the above facts, the appellate court could exercise the right of simultaneous performance defense on the ground of the cancellation of the sales contract or the payment of the balance for non-performance. However, it was not exercised due to the plaintiff's fraudulent act not notified the court or the defendant of the recovery of deposit.

This constitutes “when another person’s act subject to criminal punishment” under Article 451(1)5 of the Civil Procedure Act, thereby obstructing the submission of the method of offence or defense.

Although the repayment of deposit has ceased to be effective simultaneously with the recovery of deposit, the judgment subject to judgment is based on the deposit.