계약금반환
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. The Plaintiff’s assertion is a doctor who operated the C Hospital, and the Defendant is a person who engages in wholesale and retail business of medical appliances with the trade name “D”.
The Plaintiff decided to purchase an ultra-wave diagnostic device (hereinafter “the instant medical device”), which is a medical device, from the Defendant (hereinafter “the instant medical device”), and remitted KRW 21.5 million to the Defendant around March 31, 2017, but the Defendant was unable to sell the instant medical device to the Plaintiff due to a problem with the Evalescent which is the owner of the instant medical device.
Therefore, the Plaintiff rescinded the sales contract for the medical device of this case concluded with the Defendant, and thus, sought the return of the down payment to the Defendant, and even if not, the Defendant agreed to refund the down payment to the Plaintiff up to May 4, 2017, and thus, the Defendant demanded the return of the down payment to the Defendant.
2. According to the statement in Gap evidence No. 1, the plaintiff may recognize the fact that the plaintiff remitted KRW 21.5 million to the defendant on March 31, 2017. However, the remaining evidence submitted by the plaintiff alone is insufficient to recognize that the sales contract for the medical device of this case was concluded between the plaintiff and the defendant (i.e., the defendant's "seller" as a party to the sales contract), and there is no other sufficient evidence to acknowledge it otherwise.
(A) The Plaintiff, while having entered into a contract with the Defendant, would be able to find and submit the contract, but could not submit it after completion). Furthermore, the Plaintiff’s assertion for the return of the agreed amount is considered.
The Defendant prepared on April 14, 2017, “written performance” on the Plaintiff (Evidence 2 of this Act), and the content thereof “D shall transfer the down payment amount of KRW 21.5 million received from the Plaintiff to E/C hospital as it is, until May 4, 2017, the Defendant shall return the down payment received from the E/C hospital to the account designated by the C Hospital (Plaintiff).”
Such a statement of performance.