부당이득금
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. On July 2013, the Plaintiff asserted that the Plaintiff agreed with the Defendant to lease the “D gas station” located in the Gangseo-gu Busan Metropolitan City, Busan (hereinafter “instant gas station”) as KRW 100 million in lease deposit and KRW 5.5 million in monthly rent (hereinafter “instant agreement”), and paid the Defendant the sum of KRW 20 million in down payment and KRW 27 million in intermediate payment and KRW 47 million in total.
However, the Defendant, at the time of the instant agreement, did not complete the lease contract, and agreed to complete the registration of the establishment of the right to lease on a deposit basis in the future of the Plaintiff on the land and building of the said gas station.
The agreement of this case, which is the primary cause of claim, is nothing more than a provisional contract, and since this contract was not concluded between the plaintiff and the defendant, the defendant's payment of KRW 47 million from the plaintiff constitutes unjust enrichment.
Therefore, the defendant is obligated to pay the plaintiff the above unjust enrichment amounting to 47 million won and damages for delay.
B. If the agreement of this case, which is a preliminary claim, constitutes a conclusion of the lease agreement, the Plaintiff terminates the lease agreement by serving the copy of the complaint of this case on the grounds of nonperformance of the Defendant’s obligation to register the establishment of chonsegwon, etc., and seeks reimbursement of the lease deposit amount of KRW 47 million already paid to the Defendant as the restitution to its original state and the delay damages therefrom.
2. Judgment on the primary and conjunctive claims
A. As to whether the Plaintiff was a contracting party to a provisional contract or lease contract for the purpose of lease on the instant gas station between the Defendant and the Defendant.
According to the testimony of the witness E for the trial of the case, the plaintiff transferred KRW 27 million to the defendant on July 10, 2013 in the name of the plaintiff's child, and around two months from July 2013, the plaintiff was at the gas station of this case.