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(영문) 부산고등법원 2015.09.23 2014나8721

매매대금반환 등

Text

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the Plaintiff.

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. The reasoning of the judgment of the court of first instance cited in the instant case is as stated in the reasoning of the judgment of the court of first instance, except for adding the judgment as to the Plaintiff’s assertion as follows. Thus, this is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

(1) The Plaintiff’s assertion in the first instance court is basically repeating the same argument in the first instance trial. However, even if the Plaintiff’s assertion and the ground for partial supplementation in the first instance trial were examined, the first instance court’s determination is justifiable). 【The Plaintiff’s additional determination is clearly specified as of October 31, 2013, the delivery date of the instant real estate is clearly specified as of October 31, 2013, and the Defendants may deliver the instant real estate by extending one month until November 30, 2013 in extenuating circumstances. However, in the event that the delivery date of the instant real estate is not observed as above, the Defendants are legally liable, and thereby, should be deemed to have agreed to waive the Plaintiff’s obligation to pay the remainder if the instant real estate is not delivered by the delivery date as of the extended date.

In light of the above circumstances asserted by the Plaintiff, it is insufficient to recognize that the Defendants agreed to waive the Plaintiff’s obligation to pay the balance and the simultaneous performance relationship where the real estate of this case is not delivered until the due date of delivery, and there is no other evidence to acknowledge it. Therefore, the Plaintiff’s assertion is without merit.

In addition, the Plaintiff did not make a minimum effort to deliver the instant real estate until October 31, 2013 or at the latest on November 30, 2013, and did not have the intent or ability to deliver the instant real estate from the beginning. Therefore, the instant sales contract is rejected or impossible for the Defendants to perform their duties.