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(영문) 서울북부지방법원 2016.02.02 2015나33012

약정금

Text

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. The Plaintiff and the Defendant concluded an investment agreement (hereinafter “instant investment agreement”) that purchases a building of 123 square meters and above ground 2-story, Nowon-gu, Seoul Special Metropolitan City (hereinafter “the instant real estate”) owned by C and takes profits therefrom into account, and entered into a sales agreement with C on September 9, 2006 with respect to the said real estate at KRW 238 million, and completed the registration of ownership transfer in the name of E, the mother of the Defendant, on October 30, 2006.

Meanwhile, the Plaintiff and the Defendant took out a loan of KRW 110 million from the Chang-dong Saemaul Bank of Korea on the same day, and completed the registration of establishment of a neighboring mortgage to the said community credit cooperative with the maximum debt amount of KRW 143 million and the debtor E.

B. On December 15, 2008, the Plaintiff prepared an E’s agreement (No. 1-1, hereinafter “instant agreement”) with the Defendant as follows, and the Defendant stated E’s personal information in the name, address, and resident registration number column at the bottom of the said agreement and affixed the E’s seal imprint.

Paragraph 1 (Opening) (1) on September 9, 2006, the title of the instant real estate sales contract (the down payment on September 9, 2006, the intermediate payment on October 16, 2006, and the balance on October 30 of the same year) was registered under E. In the sales contract for the instant real estate (the title of the instant real estate sales contract). (2) out of the purchase price of KRW 238 million, E bears the full amount of the loan and the registration tax excluding the lease deposit and KRW 110 million, and the lease deposit. The amount was reduced according to the new lease during the holding period, and the Plaintiff bears interest on the loan, acquisition tax and other miscellaneous expenses until the sale period, and increases the partial amount of investment according to the return of the lease deposit. (2) (Investment shares and management) ① The funds necessary for purchase (the cost of various taxes and interest expenses) was borne by the Plaintiff and E in addition to all expenses (the cost of various expenses and interest and profit-sharing expenses) other than the instant real estate shall be borne by the Plaintiff until the lease and the instant real estate.