매매대금반환
1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
1. The Plaintiff asserted with C, jointly with the Defendant, purchased 5,325 square meters prior to D, Jeju-si, and paid down payment and part of intermediate payment. Not only did the Defendant did not complete the embanking work that the Defendant decided to pay the intermediate payment but also did not perform the obligation to cancel the existing right to collateral security, the Plaintiff sold the said land to a third party at a voluntary auction on January 15, 2013.
Inasmuch as the Plaintiff and C cancel the sales contract on May 1, 2015 on the ground that the Defendant was unable to fulfill the obligation to transfer the Defendant’s ownership, the Defendant is obliged to pay the Plaintiff the total sum of KRW 96,600,000 and the intermediate payment of KRW 22,50,000 and delay damages paid by the Plaintiff as restitution and damages.
2. Determination
A. In order to cancel a contract for reasons of impossibility of performance, such impossibility must be attributable to the obligor’s cause. Therefore, even if the seller’s obligation to transfer the ownership of the subject matter of sale is impossible, the buyer cannot cancel the contract for such reason of impossibility of performance unless the impossibility of performance is attributable to the seller’s cause attributable to the seller.
(Article 546 of the Civil Code) In addition, the obligor asserts that there is no cause attributable to him.
B. In the instant case, comprehensively taking account of the overall purport of the arguments in evidence Nos. 1 through 3, evidence Nos. 1 through 4, and witness E’s testimony, it is recognized that at the time of the sales contract, the instant land was subject to the establishment of a collateral security right of KRW 728 million within the maximum debt amount of Jeju Credit Union, and the Defendant cancelled the said collateral security right and transferred the ownership of the instant land in full. On February 14, 2012, the voluntary auction commenced on the ground that the instant land was sold to a third party on January 15, 2013, and thus the Defendant’s obligation to transfer ownership was impossible.
On the other hand, however, comprehensively taking account of the above evidence.