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(영문) 대전지방법원 2017.06.21 2017가합100950

계약금 및 중도금 반환청구의 소

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1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. The Defendant (around February 17, 2016, the trade name was changed from C to the Defendant; hereinafter “Defendant, regardless of whether before or after the mutual change was made,” is a company that newly built and sold Jeju Special Self-Governing City D commercial buildings.

B. On March 21, 2014, the Plaintiff entered into a contract for the sales of commercial buildings in which D 103 (hereinafter “instant commercial buildings, regardless of whether it was changed to 109,” hereinafter referred to as “instant sales contract”) was to purchase KRW 402,020,80 (hereinafter “instant sales contract”) with the Defendant, and paid KRW 240,112,480 in total the down payment and the intermediate payment.

C. The Plaintiff did not pay any balance by August 15, 2015, which is the remaining payment date. On October 28, 2015, the Defendant sent to the Plaintiff notice of termination of the contract that “if the remainder is not paid by November 5, 2015, the instant sales contract is terminated by November 6, 2015.”

On November 5, 2015, the Plaintiff filed a lawsuit against the Defendant seeking the return of the sale price on the grounds of the invalidation or cancellation of the instant sales contract under the Daejeon District Court 2015Gahap10640.

On October 19, 2016, the above court rendered a judgment dismissing the Plaintiff’s claim, and the above judgment became final and conclusive around that time.

The above case is referred to as "the prior suit".

(i) [In the absence of a dispute over the basis of recognition, Gap evidence 1 to 4, Eul evidence 1 and 2, the purport of the whole pleadings.

2. The plaintiff's assertion

A. The Plaintiff paid 240,112,480 won in total to the Defendant pursuant to the instant sales contract, but the instant sales contract was terminated due to the failure to pay the remainder by the payment date of the remainder.

B. According to the instant sales contract, the Plaintiff and the Defendant agreed to refund the remainder to the Plaintiff after deducting the amount equivalent to 10% of the down payment and the intermediate payment as penalty where the sales contract was cancelled due to the Plaintiff’s remainder of payment.

C. Therefore, the Defendant is equivalent to 10% of the down payment and intermediate payment to the Plaintiff on 24,011.