2. C.

(a) implement the procedures for the registration of ownership transfer for the sale of real estate listed in the separate sheet on February 28, 2013;

B. The above real estate is transferred.

2. The costs of lawsuit are assessed against the Defendants.

3. The above paragraph 1-2 (b) may be provisionally executed.

2. Preliminary claim: The Defendants shall pay to the Plaintiff 708,000,000 won and 50,000,000 won among them, 550,000 won from February 28, 2013, 10,000 won from December 29, 2015, 108,000,00 won from March 25, 2016 until the delivery date of a copy of the application for modification of the purport and cause of each of the instant claims, and 5% interest per annum from the following day to the full payment date.

A. On February 28, 2013, the Plaintiff entered into a sales contract with the Defendants to purchase the purchase price of KRW 1.85 billion with respect to the real estate listed in the separate sheet, and paid KRW 50 million out of the down payment of KRW 300 million to the Defendants. The special terms and conditions of the said sales contract are as follows (Evidence A 1-2);

1. The buyer shall confirm the current status of the real estate and the public records document and shall enter into the contract in the present condition. 2. The buyer shall pay 50 million won out of the down payment of 300 million won to the seller's account on the 25th day of each month until the 25th day of the order of the lessee (D) to pay 250 million won to the buyer at the time of the contract. 3. The buyer shall pay 250 million won to the seller at the time of the name of the present lessee (D). 4. The buyer shall pay the rent of 550 million won (including additional dues) at the time of the present tenant's failure to pay any balance three months after the date of each month. 5. The buyer shall consider the agreed amount of the down payment of 30 million won (including additional dues) to be due for the buyer's failure to pay 3.0 million won or more, and the buyer shall automatically terminate the contract to the buyer's right after the expiration of the contract.

9. Where 100 million won is insufficient due to the purchaser's circumstances at the time of registration of relocation, a seller shall establish a second-class collateral mortgage at the same time with the registration of relocation, and a buyer shall bear 12% interest per annum and expenses incurred in the establishment: Provided, That the period shall be determined by October 31, 2016;

B. In accordance with paragraph (2) of the foregoing special agreement, when the Plaintiff transfers KRW 3 million to the designated account from March 2013 to the Defendants, the Plaintiff deposited KRW 250 million and KRW 3 million in the account designated by the Defendants, as notified by the Defendants following consultation on the delivery date of the real estate stated in the separate sheet with the Defendants, the previous lessee, and the previous lessee, on December 24, 2015, the expiration date of the above “D” as notified by the Defendants. However, the Defendants closed the said account and deposited KRW 350 million in the account on the same day without having refused to receive the said money transferred by the Plaintiff. < Amended by Presidential Decree No. 24270, Feb. 24, 2016>

1. 피고들과 원고 사이에 2013. 2. 28. 체결한 피고들 소유의 경산시 G, H, | 토지 및 지상건물에대한 ‘상가매매계약'을 피고들의 사정에 의하여 해제함을 통보합니다.2. 본 계약해제 통보로 위 상가매매계약은 적법하게 해제되어 소급적으로 무효화되었으므로, 향후 계약의 이행행위를 중단하여 주시기 바랍니다.3. 다만, 피고들의 사정에 의해 부득이 해제하는 것이어서 계약서 제5조에 따른 해약금을 지급할 예정인데, 계약금을 일부만 받은 상황이어서 최근 대법원 판례가 정한 반환할 해약금 기준에 따라상호 협의 되는대로 지급하겠습니다.

C. From January 5, 2016 to March 25, 2016, the Plaintiff deposited KRW 3 million, respectively, with the monthly payment from December 2, 2015 to March 2016 against the Defendants who refuse to receive over four occasions. The amount of deposit included therein, the amount paid by the Plaintiff to the Defendants pursuant to paragraph (2) of the aforementioned special terms and conditions of the sales contract is KRW 3 million per month from March 3, 2013 to 36 times in total, and KRW 18 million per month. [Grounds for recognition] There is no dispute; evidence No. 1 to 3, evidence No. 2, evidence No. 3-1 to 4, evidence No. 3-1 to 4, evidence No. 5-2, evidence No. 1 to 6-1, 2, 301 to 30, evidence No. 1 to 307-1, 3, 13-2, and 3-1 of the entire pleadings.

2. The parties' assertion

A. The plaintiff's assertion

(1) The primary cause of the claim

Since the Plaintiff entered into a sales contract with the Defendant on the real estate stated in the separate sheet, the Defendant is obligated to transfer the said real estate to the Plaintiff at the time of receiving the remainder payment from the Plaintiff. While the Defendant asserted a rescission under the down payment contract, the Plaintiff paid only a part of the down payment and did not enter into a down payment contract between the Plaintiff and the Defendants. Therefore, the Defendants cannot cancel the down payment pursuant to Article 565(1) of the Civil Act. Therefore, the Defendants’ notification of cancellation is invalid, and the Defendants are liable to implement the procedures for the registration of ownership transfer

(2) Preliminary Claim

In cases where the contract deposit of the Defendants is terminated, the Defendants are obligated to pay 18 million won (3 million won x 36 months) and damages for delay, which the Defendants received from March 2013 to March 2016, as an obligation to restore to their original state due to the cancellation of the contract deposit, two times the contract deposit under the contract deposit, and due to the cancellation of the contract.

B. The defendants' assertion

Of the agreed down payment amounting to KRW 50 million, the Plaintiff paid KRW 50 million to the Plaintiff, and the remainder KRW 250 million was not actually paid, but this interest has been paid KRW 3 million per month. This is because the Defendants, in form, have received interest payment from the Plaintiff in the manner of lending KRW 250 million to the Plaintiff, the Plaintiff shall be deemed to have paid the entire down payment to the Defendants. Therefore, the contract for down payment is valid, and the Defendants, in accordance with the contract for down payment, paid the Plaintiff the penalty to the Plaintiff and rescinded the contract, so the Defendants did not have any obligation to comply with the Plaintiff’s claim for the registration of ownership transfer.

3. Determination

A. Judgment on the issue

The key issue of the instant case is whether the contract between the Plaintiff and the Defendants was valid or not, and thus, it should be examined first.

(1) Relevant legal principles

In principle, one of the parties can not rescind the contract in mind after the conclusion of the contract. However, in a case where the contract for the down payment was made in addition to the principal contract, it may be voluntarily rescinded pursuant to Article 565(1) of the Civil Act. However, since the contract for the down payment requires delivery of money and other valuables, there is no right to cancel the contract in accordance with the provisions of the Civil Act, i.e., the effect as the contract deposit, in the only stage where the contract for the payment of the down payment is made, that is, the right to cancel the contract is still not created. Therefore, in a case where the parties agree to make the payment of part of the down payment first and the balance later or the payment of the down payment last is made, the other party may request the performance of the contract for the payment of the down payment or the rescission of the contract for the reasons of default if it is acknowledged that the delivery would not have concluded the principal contract without the said agreement, but the contract for the down payment that the delivery did not pay the remainder or the whole amount of the down payment, and thus the parties cannot cancel the contract at will (see Supreme Court Decision 2073617Da.

(2) Whether a down payment contract is concluded

According to the facts of the recognition under Paragraph (1), the special contract of this case clearly states that the contract deposit is in a state of being paid at 'unpaid', and it is also known that any agreement (e.g., a loan certificate or a cash storage certificate, etc.) between the parties that the seller lends the remainder of the contract deposit to the buyer is not prepared. The evidence submitted by the Defendants alone is insufficient to acknowledge that the Plaintiff, the buyer, borrowed the remainder of the contract deposit from the Defendants, the seller, or lent it in the form, and there is no other evidence to recognize otherwise. Rather, in light of the above facts, it is reasonable to deem that the Defendants agreed to receive KRW 300,000 per month as interest in return instead of delaying the payment period of the remainder of the contract deposit to be paid by the Plaintiff.

(3) Sub-determination

Therefore, as long as the contract deposit is not paid in full, it is deemed that the contract deposit has not yet been concluded. Thus, the Defendants, as the seller, cannot cancel the contract at will, unless the Plaintiff did not perform his/her obligation, and thus, the declaration of intent to cancel the contract of this case unilaterally expressed by the Defendants before receiving the entire contract deposit is invalid.

B. Judgment as to the plaintiff's main claim

Therefore, the Defendants are obligated to perform their obligations as a seller under the terms stipulated in the instant sales contract. Therefore, the Defendants should receive from the Plaintiff the remainder down payment of KRW 250 million and KRW 1.5 million, which is the sum of KRW 1.85 million, and at the same time receive from the Plaintiff the payment of KRW 1.835 million, which is the sum of the remainder down payment of KRW 250 million and KRW 1.85 million, and simultaneously implement the procedures for the registration of ownership transfer for the real estate indicated in the separate sheet to the Plaintiff on February 28,

4. Conclusion

If so, the plaintiff's primary claim shall be accepted with due cause, and it is so decided as per Disposition.

Judges Maintenance Award

Judges Park Jong-young