2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 85% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4.Paragraph 1 may be enforced provisionally.

1) The Defendant is the owner of land 4,734m2 (hereinafter “instant land”) in Macheon-si, C. D. The Plaintiff is a regional housing association that obtained authorization for establishment for the purpose of promoting the construction project of a regional housing association under the Housing Act in Macheon-si, Macheon-si, including the land owned by the Defendant.

2) Around September 17, 2015, the Defendant entered into a contract for the sale of the instant land with Moling Korea Co., Ltd., a company acting as an agent for the Plaintiff (hereinafter “instant contract for the sale of real estate”). The main contents of the contract for the sale of real estate are as follows:

A real estate sales contract seller: (The real estate sales contract for the Plaintiff: (The real estate sales contract for the Plaintiff et al.: 2,868,000,000 won: 2,866,00,000 won; and (2) the time and method of payment for the purchase price and the fixed-term payment rate for the contract deposit 286,80,000 won and seal 286,80,000 won and less than five business days after signing and sealing the contract; (2,581,200,000 won and more than the last day of March, 2016, the contract shall be null and void if the total sum of deposits without passbook, 2,868,000,000 won, and the balance is not paid at the due date. In such cases, the contract shall be null and void

3) Thereafter, around March 2016, the Plaintiff was unable to pay the remainder due to the occurrence of the circumstance where the Plaintiff’s business establishment authorization was delayed.

4) The Ringing Korea Co., Ltd. shall, through F, request the Defendant to extend the payment date of the instant real estate sales contract through F, pay the amount equivalent to the rate of 3% per month for damages arising from the delay in payment of the remainder until the Plaintiff pays the remainder.

The defendant accepted the proposal and entered into an agreement between the plaintiff and the defendant (hereinafter referred to as "the agreement of this case").

5) On August 31, 2016, the Plaintiff paid the remainder amount of KRW 2,581,200,000 to the Defendant and performed the obligation to pay the remainder under the instant real estate sales contract. The Plaintiff paid a total of KRW 374,430,060 as damages according to the instant special agreement for the delayed period.

【Fact-finding, Gap 1, 2, Eul 2, the purport of the whole pleadings

2. The plaintiff's assertion

The defendant demanded interest for 3% per month by taking advantage of the plaintiff's poor condition, and the plaintiff accepted the defendant's demand. Since the special agreement of this case constitutes an unfair juristic act under Article 104 of the Civil Act and is null and void, the defendant must return to the plaintiff the amount stated in the purport of the claim that the plaintiff paid to the defendant as compensation for damages.

3. Determination

A. Whether the agreement of this case violates Article 104 of the Civil Code

An unfair legal act stipulated in Article 104 of the Civil Act is established when there exists an objective imbalance between payment and consideration, and a transaction which has lost balance as a subjectively, took place using the flash, rashness, or inexperience of the victimized party. Even if the injured party was in a state of flash, rash, or in experience, the injured party was aware of the circumstances on the part of the victimized party, i.e., the intent to use the flash with the intent to use the fla

If there was no or there was no significant imbalance between payment and consideration, unfair legal act is not established (see, e.g., Supreme Court Decision 2002Da38927, Oct. 22, 2002).

As to the instant case, in light of the following circumstances: (a) the Plaintiff, who is unable to pay the remainder agreed on the date of payment of the remainder, is not bound to take down the down payment; (b) the construction of the apartment building itself did not have to break down the down payment; and (c) the Plaintiff first made such proposal to the Defendant; (d) it is difficult to deem that the instant special agreement was concluded at the time of the instant special agreement, or based on the Defendant’s intent to use the Plaintiff’s womb, and it cannot be deemed that there exists a significant imbalance in the instant special agreement by taking advantage of the Defendant’s width. Accordingly, the Plaintiff’s assertion that the instant special agreement is null and void as an unfair legal act as prescribed in Article 104 of the Civil Act is without merit.

(b) Reduction of estimated amount of damage compensation;

According to the above facts, the special agreement of this case is an estimate for compensation for damages for delay of payment of the balance (which does not dispute the defendant), and where the estimated amount of compensation for damages is unreasonably excessive, the court may reduce it ex officio without the parties' claims. "In this case," "unfairly excessive cases" means cases where the payment of the estimated amount of compensation is deemed to result in the loss of fairness by giving unfair pressure to the debtor in the position of the economically weak, in light of the general social concept in light of all the circumstances such as the status of the creditor and the debtor, the purpose and contents of the contract, the motive scheduled for the amount of compensation, the anticipated motive for the amount of compensation, the ratio of estimated amount to the amount of compensation, the estimated amount of liquidated damages, the size of expected losses, and the prevailing practices at the time. (See Supreme Court Decision 200

200Da35771 decided Feb. 1, 200

As to the instant case, setting the amount of damages at the level of 3% per month (at the rate of 36% per annum if the pertinent special agreement is converted) of the unpaid amount of damages (at the rate of 2,581,200, x 30% per annum) in the instant special agreement is somewhat excessive even if taking into account the aforementioned circumstances into account, such as the situation at the time of the instant special agreement and the Plaintiff’s loss to be incurred when the instant real estate sales contract is rescinded. The amount of damages to be paid by the Plaintiff is reasonable to reduce the amount of damages calculated at the rate of 30% per annum. Accordingly, when calculating the amount of damages to be paid by the Plaintiff, the amount of damages to be paid by the Plaintiff would be 322,650,000 (=2,581,200, 00

Therefore, as a return of unjust enrichment to the Plaintiff, the Defendant is obligated to pay to the Plaintiff 51,753,060 won (=374,430,060 won -322,650,000 won) and damages for delay calculated at the rate of 5% per annum from September 30, 2016 following the delivery of a copy of the instant complaint to the day of full payment, as requested by the Plaintiff.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition, and the remaining claim is dismissed without any justifiable reason. It is so decided as per Disposition.

Judges Jeon Young-ju

Judges Jeong-ho

2) Five months delayed until August 31, 2016, the date of the original payment agreement, which was the date of the remainder payment agreement, and the actual payment of the remainder was made on March 31, 2016.