2.C

3.D

4.E

2. The costs of lawsuit shall be borne by the Plaintiff.

A. The Plaintiff is an association established to conduct a new apartment construction business in the Busan Seo-gu, Busan. The Defendants were owners of the 4,668§³ in Busan Seo-gu, Busan (hereinafter referred to as “G land”) and H 949 square meters in size (hereinafter referred to as “H land”), which are land within the said business site, and the G land and H land in total.

B. On September 5, 2014, the Plaintiff-B Co., Ltd. (hereinafter referred to as “Nonindicted Company”) entered into a sales contract with the Defendants to purchase KRW 1,954,000 (hereinafter referred to as “instant sales contract”) in total of the price for the instant land. Pursuant to the instant sales contract, Defendant B and C paid KRW 65,132,000, respectively, to Defendant D and E as the down payment on September 5, 2014, respectively.

C. At the time of the instant sales contract, the non-party company and the Defendants, in principle, pay the remainder within three months after paying the down payment. However, in the event that prior deliberation is required, such as authorization for the establishment of a regional housing association and district unit plan, the payment may be postponed only once for one month (i.e., January 5, 2015). However, at the expiration of the payment period, the contract is terminated, and the buyer may not claim the return of the down payment to the seller, and the Defendants agreed to submit all the documents necessary for the registration of the transfer of ownership to the non-party company or the non-party company designated

D. At the time of April 9, 2015, the Defendants concluded a sales contract for the instant land between one and one, who was the chairperson of the Plaintiff’s promotion committee, and received the same day’s down payment. Moreover, as to the G land on April 7, 2016, the Defendants completed the registration of ownership transfer on the ground of sale on January 15, 2016, respectively.

E. On July 2016, the non-party company did not return the down payment, etc. to the non-party company even though the defendant transferred the instant land to another company without consultation with the non-party company. The non-party company agreed that the non-party company shall transfer all of the claims, such as the down payment return claim, etc. of the non-party company (hereinafter referred to as the "transfer contract of this case") to the plaintiff, and that "the execution of the instant contract was impossible by transferring the instant land to another party," so notification of the cancellation of the instant contract, claim for the payment of down payment, penalty, etc., and the above claim is transferred to the plaintiff."

[Ground of recognition] Facts without dispute, Gap evidence 2-1, Eul evidence 2-1, 3-2, Gap evidence 5-1 to 4, Eul evidence 1-1 to 4, the purport of the whole pleadings

2. The parties' assertion

A. The plaintiff's assertion

1) The primary argument

The instant sales contract was concluded between the non-party company and the Defendants as the Plaintiff’s agent. After the instant sales contract was concluded between the Plaintiff and the Plaintiff on December 4, 2014, Defendant B agreed to cancel the instant sales contract and to pay the down payment that was already paid to the Plaintiff, and agreed to conclude a sales contract on the instant land again with the Plaintiff (hereinafter “instant contract”). Accordingly, the Defendants concluded a sales contract on the instant land between the Plaintiff and the Plaintiff on April 9, 2015 and received the down payment from the Plaintiff. Accordingly, the Defendants are obligated to pay the down payment received from the non-party company pursuant to the instant contract (the instant contract’s rescission and implied agreement on the return of down payment).

2) Preliminary assertion

The Defendants, according to the instant sales contract, were obligated to perform the procedure for the registration of ownership transfer of the instant land to the non-party company, but the obligation for the registration of ownership transfer to the non-party company was omitted by selling the instant land to the non-party company. Accordingly, the non-party company cancelled the instant sales contract against the Defendant around July 2016, and entered into the instant transfer contract with the Plaintiff, and thus, the Defendants are obliged to pay the down payment that the non-party company received from the non-party company as restitution according

B. The defendants' assertion

Since the assignment of claims in this case was concluded with the main purpose of having the non-party company act as the plaintiff, the assignment of claims in this case constitutes a litigation trust and thus null and void.

3. Determination

A. Whether a lawsuit trust is a trust

The evidence alone submitted by the Defendants alone is insufficient to recognize that the assignment contract of this case was concluded with the primary purpose of having the non-party company act as the plaintiff, and there is no other evidence to acknowledge it. Thus, the above assertion by the defendants is without merit.

B. Judgment on the Plaintiff’s primary assertion

The written evidence Nos. 4 and 6 alone is insufficient to acknowledge that the agreement of this case was concluded between the Plaintiff and the Defendant, as alleged by the Plaintiff, after the contract of this case was concluded, and there is no other evidence to acknowledge it. Thus, the Plaintiff’s primary assertion based on this premise is without merit.

C. Judgment on the plaintiff's conjunctive assertion

After the sales contract of this case, the Defendants completed the registration of ownership transfer for the land of this case on January 15, 2016 in the future of J (the representative of the Plaintiff) and the Plaintiff, respectively, and Nonparty Association.

Around July 2016, a company sent to the Defendants a document to the effect that the execution of the instant sales contract was impossible because it transferred the instant land to another seller. However, the remaining payment date may be extended until January 5, 2015 when the sales contract was concluded between the non-party company and the Defendants at the time of the instant sales contract. The sales contract was terminated at the time of the expiration of the remaining payment date, and the buyer (the non-party company) agreed not to claim the return of the down payment amount to the seller (the defendant). According to the purport of the above evidence No. 2-1 to No. 4, the Defendants did not lawfully claim for the remaining payment of the down payment amount to the non-party company until December 19, 2014 and December 29, 2014, and the Defendants did not claim for the remaining payment of the down payment amount to the non-party company to the non-party company until the expiration of the contract.

Therefore, it is presumed that the amount of damages should be estimated in accordance with the determination of the amount equivalent to 10% of the sales price in the real estate sales contract as a down payment, and the agreement to pay it as a penalty is a general trade practice. The amount of damages in this case also goes beyond the general practice as 10% of the sales price. ② There is no special circumstance to deem the aforementioned sales contract’s details, motive and motive, and the company other than the company at the time as mentioned above as an economically weak person than the Defendants. In light of the above, it is difficult to view that the down payment corresponding to the estimated amount of damages in this case’s compensation is the degree to lose fairness by unfairly pressure on the non-party company. Thus

4. Conclusion

Then, the plaintiff's primary and conjunctive claims are without merit, and they are so decided as per Disposition.