계약금반환청구
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
Purport of claim and appeal
The first instance court.
1. The reasoning for the court’s explanation of this case is as stated in the judgment of the first instance except for adding the following judgments as to the plaintiff’s assertion in the appellate court. Thus, it is acceptable to accept this as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.
[Supplementary part] The Plaintiff asserts to the effect that the Defendant’s content certification (Evidence A2) as of May 13, 2015 is an expression of intent to cancel the instant contract, and that the Plaintiff consented with the content certification (Evidence A3) as of December 4, 2015, and eventually, the instant contract was terminated. Thus, the Defendant is obligated to return the down payment of KRW 87 million to the Plaintiff due to restitution.
A contract termination or rescission is a new contract, regardless of whether the contract is rescinded or not, which provides that the parties to the contract shall terminate the validity of the existing contract by mutual agreement and return it to the same state as that in which the contract was not concluded from the beginning. In order to cancel the agreement, the agreement shall be concluded with the opposite expression of intent, like the formation of the contract, which is the offer and acceptance of the contract (agreement). In order to establish such agreement, the content of the agreement expressed by both parties must objectively coincide.
(see, e.g., Supreme Court Decision 2010Da77385, Feb. 10, 2011). In addition, even if an agreement is rescinded and an agreement on restitution is not necessarily required, the cancellation of a sales contract without any agreement on the return of the down payment, the intermediate payment, and the compensation for damages already paid is an example in light of the empirical rule.
(see, e.g., Supreme Court Decision 94Da17093, Sept. 13, 1994). Based on such legal doctrine, the Plaintiff’s intermediate payment and certification of content (Evidence A2) of the Defendant on May 13, 2015, based on the foregoing legal doctrine.