계약금반환 등
1. Revocation of the first instance judgment.
2. The plaintiff's claim is dismissed.
3. All costs of the lawsuit shall be borne by the Plaintiff.
1. On June 8, 2015, the Plaintiff agreed to take over KRW 21,50,000 from the Defendant’s business of food service business of the trade name “D” operated by the Defendant in Ulsan-gu building (hereinafter “instant building”) for KRW 21,50,000 (hereinafter “instant agreement”); on the same day, the Plaintiff paid KRW 5,00,000 to the Defendant the down payment and KRW 1,00,000 to the broker who arranged the instant agreement, respectively.
[Reasons for Recognition] Facts without dispute, Gap evidence Nos. 1, 3, and 4, the purport of the whole pleadings
2. After the Plaintiff’s assertion, the Plaintiff continued to enter into a lease agreement with the owner of the instant building after the instant agreement, and the said owner stated that “the facilities of the instant building were the owner of the building himself/herself, and thus, the said owner did not place the right as the owner of the building.”
Accordingly, the agreement of this case, which has agreed to transfer all rights related to business, has become impossible to perform due to the defendant's fault, and the plaintiff has cancelled the agreement of this case on this ground.
Therefore, the Defendant is obligated to pay the Plaintiff the down payment of KRW 5,00,000,000, the broker fee of KRW 1,000,000, the total sum of KRW 6,000,000, and the delay damages.
3. The written evidence evidence Nos. 1 through 4 alone is insufficient to acknowledge that the instant agreement resulted in nonperformance due to a cause attributable to the Defendant, and there is no other evidence to prove otherwise.
Therefore, the plaintiff's assertion based on this premise is without merit.
4. In conclusion, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition.