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(영문) 대법원 2017.07.11 2017다216424

계약금 등 반환

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1. The part of the judgment below against the Defendants on damages for delay shall be reversed, and that part shall be as follows.

Reasons

1. The defendants' grounds of appeal are examined.

For the reasons indicated in its reasoning, the lower court determined that it is difficult to view the CD and the claim assignment contract between the Plaintiff as the object of a lawsuit trust, and rejected the remainder Defendants’ defenses on the merits other than the Defendant Z, and determined that the instant enforcement officer has the right to claim a down payment against the purchaser pursuant to Article 9 of the instant sales contract.

The judgment below

Examining the reasoning of the judgment below in light of the records, the above judgment of the court below is justifiable.

In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on the interpretation of litigation trust or disposal document, or by exceeding the bounds of free evaluation of evidence

2. We examine the misapprehension of legal principles as to the validity of the assignment of claims in the grounds of appeal by Defendant H.

The lower court, on the grounds indicated in its reasoning, determined that the assignment of claims concluded between AM and CDs is valid.

The judgment below

Examining the reasoning in light of the record, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors by misapprehending the legal principles on the validity

3. As to Defendant H’s assertion of misapprehension of legal principles as to the application of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Litigation Promotion Act”), the remaining Defendants are determined ex officio.

Article 3(2) of the Civil Procedure Promotion Act provides, “Where it is deemed reasonable for an obligor to resist the existence or scope of the obligation to perform prior to a fact-finding judgment declaring that the obligor has the obligation to perform the obligation to perform the obligation, paragraph (1) shall not apply to the reasonable extent.” However, if the obligor asserts the existence and scope of the obligation to perform the obligation in the first instance trial, it is accepted in the appellate trial.