계약금등반환
1. The plaintiff's appeal is dismissed.
2. The costs of appeal shall be borne by the Plaintiff.
The purport of the claim and appeal is the purport of the appeal.
1. Basic facts
A. On November 4, 2016, B Co., Ltd. (hereinafter “B”) concluded a sales contract with the Defendant to purchase KRW 3,973,765,430 of the purchase price with respect to the wife population C, D, E, F, and F volume 2,575 square meters (hereinafter “instant real estate”) and to pay the down payment of KRW 400,765,000 on the date of the contract, and to pay the down payment of KRW 3,573,765,430 by April 4, 2017 (hereinafter “instant sales contract”), and paid KRW 400,000,000 to the Defendant on the date of the contract (hereinafter “instant sales contract”).
B. After that, B delayed the remainder of the payment date of the instant sales contract until May 19, 2017, and paid KRW 66,090,180 to the Defendant on April 4, 2017.
C. On May 11, 2017, the Plaintiff comprehensively acquired the buyer’s status under the instant sales contract from B.
[Ground of recognition] Facts without dispute, Gap evidence 1 to 5, Eul evidence 3 and 4, the purport of the whole pleadings
2. The assertion and judgment
A. The Plaintiff’s assertion B purchased the instant real estate for the purpose of constructing a new hotel, and the Defendant was also aware of such fact.
However, as a residential area is formed in the vicinity of the instant real estate, the said real estate cannot be permitted to build a new hotel.
This is a case where the party lacks the nature of the object of sale scheduled or guaranteed by legal disability.
On May 16, 2017, the Plaintiff notified the Defendant of the cancellation of the instant sales contract by mail, based on the warranty against defects.
Therefore, the defendant is obligated to refund the sum of the down payment and interest on delay for the remainder, which was already paid by the restoration to the original state following the cancellation, to the plaintiff, KRW 466,090,180, and damages for delay.
The Plaintiff, through the preparatory brief dated April 9, 2018, withdrawn the allegation of cancellation due to the mistake of motive among the causes of the claim alleged in the first instance trial.
B. The nature of the instant real estate, which is the subject matter of judgment, is scheduled or guaranteed by a party.