부당이득금반환 청구의 소
1. Of the judgment of the court of first instance, the part against the plaintiff ordering payment is revoked.
The defendant shall make the plaintiff 3,00.
1. Whether a premium contract has been concluded;
A. The Plaintiff’s assertion 1) The Plaintiff paid the premium of KRW 10 million in return for the Defendant’s acquisition by transfer of the restaurant that the Defendant leased and operated. At the Defendant’s request, the Plaintiff paid KRW 10 million in preference to the Plaintiff’s transfer of the right of lease without the lessor’s consent. In addition, the amount of the premium was not specifically determined, and as the nature of the premium is not determined, it was not constituted a premium contract. As such, the Defendant is obligated to return the premium of KRW 10 million to the Plaintiff. 2) The Defendant’s contract is established when the parties agree to the agreement, and it does not have to meet the written form. Thus, the Plaintiff’s contract was concluded orally with the Plaintiff on November 2017.
B. In order to establish a judgment contract, the parties’ agreement is required to be reached, and such agreement is not necessary with respect to all matters constituting the contents of the contract in question, but it is required to have specific agreement with regard to its essential matters or important matters (see, e.g., Supreme Court Decision 2017Da242867, Oct. 26, 2017). Under the following circumstances, comprehensively taking account of the overall purport of the entries and arguments in the evidence No. 1, No. 1, and No. 1, and the entire arguments, the following circumstances: (i) a premium contract has the meaning of a contract transferring intangible property value, such as business facilities, equipment, etc., or tangible goods or transaction parties, credit, business know-how, or business interest, etc. depending on the location of the store; and (ii) the object of a premium contract between the Plaintiff and the Defendant may be deemed to have been identified as a whole as the restaurant business operated by the Defendant; and (iii) as the Plaintiff is the Plaintiff, the premium amount is adjusted between KRW 25 million and 30 million.