2012Gais843 down payment, refund of down payment and payment of penalty

A

1. B

2. C:

October 17, 2012

November 7, 2012

1. Defendant C shall pay to the Plaintiff 1,00,000 won with 5% interest per annum from September 18, 2012 to July 201, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The Plaintiff’s claim against Defendant B and the remainder of the claim against Defendant C are dismissed, respectively. Of the lawsuit costs, the part arising between the Plaintiff and the Defendant B is borne by the Plaintiff, and the part arising between the Plaintiff and the Defendant C is divided into two parts, and the Plaintiff and the remainder is borne by the Defendant C, respectively.

4. Paragraph 1 can be provisionally executed.

The defendants jointly and severally pay to the plaintiff 2,00,000 won with 20% interest per annum from the next day of the delivery of a copy of the complaint of this case to the day of full payment.

1. Determination as to the claim against the defendant B

According to the records, Defendant B is merely a real estate intermediary who arranged a provisional contract for the lease of the instant real estate, and the provisional contract amount paid by the Plaintiff to Defendant C (hereinafter “C”) who is a lessor through Defendant B is recognized as having been paid to the Defendant C (hereinafter “the Plaintiff”). Thus, the instant claim seeking the return of the provisional contract amount and the payment of the penalty against the Defendant B is without merit.

2. Determination as to the claim against Defendant C

It is reasonable to deem that KRW 1,00,000, which the Plaintiff remitted to Defendant C via Defendant B, would be appropriated as part of the down payment when this contract was concluded in the future. As long as this contract was not actually concluded between the Plaintiff and the Defendant C, Defendant C is obligated to return the said provisional contract amount to the Plaintiff, as long as this contract was not concluded between the Plaintiff and the Defendant C.

As to this, Defendant C alleged that the provisional contract amount of KRW 1,00,000 was reverted to Defendant C with penalty due to a cause attributable to the Plaintiff, and the Plaintiff, by asserting that the principal contract was not concluded due to the cause attributable to the Defendant C, requested the return of the provisional contract amount and the additional payment of penalty equivalent to the above provisional contract amount. However, in the case where the down payment was received, it has the nature of the cancellation amount in principle, and it does not necessarily have to be regarded as penalty as a matter of course, unless there is any special agreement stipulating that the down payment should be paid as penalty, and there is no evidence to prove that there was any special agreement between the Plaintiff and the Defendant C among the individuals at the time of receiving the provisional contract amount through Defendant B, there is no reason to believe that both parties’ above assertion about the said provisional contract amount should be paid as penalty without any further need.

3. Conclusion

Therefore, the plaintiff's claim against the defendant C is justified within the above scope of recognition, and since the remaining claim against the defendant C and the claim against the defendant B are without merit, it is so decided as per Disposition.

Judge Park Jong-hun