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의정부지방법원 2018.11.29 2017나209069

매매대금반환

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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.

Reasons

1. Basic facts

A. A. On May 2015, the Defendant requested C to sell an over-to-the-counter motor vehicle (hereinafter “instant vehicle”) to C’s D.

B. On August 7, 2015, the Plaintiff concluded a motor vehicle sales contract that purchases the instant motor vehicle from the Defendant for KRW 17,000,000 (hereinafter “instant contract”).

C. On August 7, 2015, pursuant to the instant contract, the Plaintiff transferred KRW 13,992,304 out of the instant vehicle price of KRW 17,00,000,00 to the Defendant E account, and the remainder of KRW 3,007,697 to D’s account.

D On August 7, 2015, the D sent the instant vehicle to F through the consignment of the vehicle upon the request of F to send the instant vehicle via the consignment.

E. The instant vehicle is owned by the Defendant and the husband of the Defendant, and the co-ownership is the Defendant 9% and G1%.

F. F and the instant vehicle cannot be identified at present.

[Reasons for Recognition] Unsatisfy, each entry of Gap 1 through 4 (including virtual numbers), D's testimony of a witness at the trial, the purport of the whole pleadings

2. The parties' assertion

A. The Plaintiff’s assertion 1) The Defendant following the delay in performance did not deliver the instant vehicle to the Plaintiff and did not provide the documents necessary for the registration of transfer of ownership, and thus notified the Plaintiff to deliver the vehicle to the Defendant. However, the Defendant did not perform it within a considerable period of time or provide the documents, and the Plaintiff expressed his/her intent to cancel on October 2, 2015. As such, the Defendant is obligated to return the purchase price received from the Plaintiff due to the nonperformance of performance to the original state on the ground of the cancellation of the instant contract. (ii) The Defendant’s obligation to deliver the instant vehicle due to the nonperformance of performance is impossible, and the Plaintiff expressed his/her intent to cancel the contract on October 2, 2015, and thus, the Defendant is obligated to return the purchase price received from the Plaintiff due to restitution on the ground

B. The defendant's assertion 1 F. F.