계약해제의소
2018Gahap560352 Action for rescission of contract
1. A;
2. B
[Judgment of the court below]
1. C:
2. D Co., Ltd.
December 6, 2018
January 10, 2019
1. The Defendants jointly and severally against the Plaintiff A:
(a) Payment of the amount of KRW 14,900,000 and KRW 5,000,000 among them shall be made at each rate of KRW 5% per annum from December 13, 2015 to January 10, 2019, respectively, and 15% per annum from the following day to the date of full payment;
B. As to KRW 14,90,000 and its amount, Defendant C Co., Ltd. shall pay 15% interest per annum from September 8, 2018; Defendant D Co., Ltd shall pay 5% interest per annum from December 1, 2018 to January 10, 2019; and 15% interest per annum from the following day to the date of full payment.
2. The Defendants jointly and severally against the Plaintiff B
(a) Payment of the amount of KRW 14,900,000 and KRW 5,000,000 among them shall be made at each rate of KRW 5% per annum from December 13, 2015 to January 10, 2019, respectively, and 15% per annum from the following day to the date of full payment;
B. As to KRW 193,700,000 and its amount, Defendant C Co., Ltd. shall pay the interest calculated on September 8, 2018; Defendant D Co., Ltd, from October 16, 2018 to October 10, 2019, 5% per annum; and 15% per annum from the following day to the date of full payment;
C. As to KRW 14,90,000 and its amount, Defendant C Co., Ltd. shall pay 15% interest per annum from September 8, 2018; Defendant D Co., Ltd shall pay 5% interest per annum from December 1, 2018 to January 10, 2019; and 15% interest per annum from the following day to the date of full payment.
3. The plaintiffs' respective remaining claims against the defendants are dismissed.
4. The costs of lawsuit shall be borne by the Defendants.
5. The above paragraphs 1 and 2 can be provisionally executed.
1. The Defendants are jointly and severally liable to the Plaintiff A.
A. As to KRW 24,900,000 and KRW 5,000,00 among them, 5,000 shall be paid 5% per annum from December 13, 2015 to the service date of a copy of each complaint of this case from December 30, 2015 to the service date of a copy of each complaint of this case, and 15% per annum from the following day to the day of full payment;
B. 14,900,000 won and 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.
2. The Defendants jointly and severally against the Plaintiff B
A. As to KRW 24,900,000 and KRW 5,000,00 among them, 5,000 shall be paid 5% per annum from December 13, 2015 to the service date of a copy of each complaint of this case from December 30, 2015 to the service date of a copy of each complaint of this case, and 15% per annum from the following day to the day of full payment;
(b) 193,700,000 won and interest thereon shall be paid with 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of full payment; and
C. 14,900,000 won and 15% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of complete payment.
1. Indication of claim;
Of the reasons for the attached Form, the plaintiffs' claims for the return of down payment (Article 1-1(a) and 2-1(a) and (2) of the claim for penalty (Article 1-2(b) and (3) of the part of the claim corresponding to the part of the part of the part of the part of the loan (Article 2-2(b)) of the plaintiff B (excluding the part of the plaintiff's claim for consolation money) and the defendant D Co., Ltd. accept the main claim on the ground that the above defendant is a joint contracting party to the sales contract
2. Applicable provisions of Acts: Article 208 (3) 2 and Article 150 (3) of the Civil Procedure Act.
3. Part of dismissal.
(a) The claim for consolation money (the claim of consolation money shall be KRW 10 million in each of the paragraphs (a) and (2) of Article 1-1);
In general, in cases where property damage occurs due to nonperformance of contractual obligations, mental suffering that a contracting party has received is deemed to be recovered by compensating for property damage (see, e.g., Supreme Court Decisions 2002Da53865, Nov. 1, 2004; 2002Da53865, Mar. 15, 2012). Penalty is presumed to be an estimate of the amount of damages under Article 398(4) of the Civil Act. In cases where the amount of damages has been calculated at the time of the contract, as well as ordinary damage incurred due to nonperformance of contractual obligations and special damage also included in the estimated amount of damages, even if the obligee’s damage exceeds the estimated amount of damages (see, e.g., Supreme Court Decisions 92Da41719, Apr. 23, 1993; 2010Da6820, Mar. 15, 2012).
Therefore, in addition to the claim for penalty due to nonperformance of obligation against the defendants, the plaintiffs' claim for consolation money due to mental suffering, which is separate from special damage, is without merit in its assertion itself.
B. Claim for partial damages for delay
1) The Plaintiffs’ claim for penalty against Defendant D Co., Ltd. (the main claim No. 1-b and No. 2-c.) was newly added at the time of applying for change of the purport of claim and cause of claim as of November 26, 2018, and thus, the Plaintiffs’ claim for delay damages prior to the delivery date of the above application for change (the date of November 30, 2018) is without merit.
2) In addition, considering the changes in the purport of the claim and the cause of the claim after the filing of a lawsuit, and the fact that the claim for consolation money is dismissed due to the lack of reason, it is reasonable to apply the damages for delay under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the day following the date of adjudication of this case. Thus, it is not reasonable to apply the damages for delay exceeding the amount calculated at the rate of 5% per annum (the plaintiff's claim shall be made. see Article 3-1(a) of the Civil Act) of the damages for delay from the day following the day of delivery of the duplicate of the complaint of this case (the defendant corporation C, September 7, 2018, and the defendant D, September 10
Judges Kim Jong-soo
Judges Kim Hyun-han
Judges Jeon Soo-hee
1) In the application form for the change of claim and cause of claim(s) of November 2018, 2018, "joint" is jointly and severally stated in Paragraph 3, "the defendant's claim after the change of "the primary cause of claim against the defendant D corporation," "the defendant's claim" appears to be "the defendant's joint and several defendants appear to be each clerical error(s) and Paragraph 3, "the claim after the change of "the defendant's claim is stated in Section 1-b. and Section 2-c. as above."
A person shall be appointed.
A person shall be appointed.
A person shall be appointed.
A person shall be appointed.