보증금반환
2020Na12294 Return of deposit
A
Attorney Kim Hyun-woo, Counsel for the plaintiff-appellant
Attorney Lee Jong-soo et al.
B
Law Firm Democratic LLC, Counsel for defendant-appellant
Attorney Seo-sung et al.
Seoul Central District Court Decision 2018Da5187120 Decided January 28, 2020
July 14, 2020
September 15, 2020
1. The defendant's appeal is dismissed.
2. The costs of appeal shall be borne by the Defendant.
[ claim] The defendant shall pay to the plaintiff 40 million won with 5% interest per annum from February 1, 2016 to the delivery date of a copy of the complaint of this case, and 15% interest per annum from the next day to the full payment date.
[Purpose of appeal] The part against the defendant among the judgment of the court of first instance is revoked. The plaintiff's claim against the above revocation is dismissed.
1. Quotation of the first instance judgment
The reasons for this Court are as follows, except for the addition of the following ‘2. Additional Judgment' as to the argument that the defendant emphasizes or adds to this Court, and therefore, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.
2. Additional determination
A. The defendant's assertion
40,000,000 won paid by the Plaintiff to the Defendant constitutes a penalty, and is presumed to be the liquidated damages pursuant to Article 398(4) of the Civil Act. However, since there still remains any portion of unpaid remuneration even after the Plaintiff’s repair work, the Defendant may confiscate the said penalty on the ground of incomplete performance of the Plaintiff’s repair work. Ultimately, the Plaintiff’s claim for the refund of performance bond is groundless
B. Determination
In light of the fact that it is difficult to deem that the remaining remaining damages even after the Plaintiff’s repair work had occurred due to the instant construction work (the result of the on-site inspection by the first instance court seems that there was a paint between some equal heats, even if the Plaintiff continued the instant construction work after coloring the building owned by the Defendant), it is difficult to deem that the Plaintiff performed the repair work as incomplete, and there is no evidence to acknowledge otherwise, in view of the fact that the Plaintiff did not raise any particular objection to the construction work on the part adjacent to the construction site from among the building owned by the Defendant, and there is no evidence to deem that the amount paid by the Plaintiff to the Defendant or the amount of damages paid by the Plaintiff
Therefore, the defendant's above assertion is without merit.
3. Conclusion
Therefore, the judgment of the first instance is legitimate, and the defendant's appeal is dismissed as it is without merit. It is so decided as per Disposition.
Judges Kim Yong-han
Judges No. Hun-Ba
Judges Kim Chang-chul