1. The plaintiff's appeal is dismissed.

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

3. The judgment of the court of first instance is reversed.

Basic Facts

- Around April 11, 2017, the Plaintiff agreed to purchase KRW 35 million from the Defendant for the purchase of KRW C6-2 of the price of KRW 35 million (hereinafter “instant sales contract”) and paid KRW 10 million out of the remainder of the down payment and KRW 7 million.

- The Defendant, a seller, expressed clearly the intent to refuse performance, even if the remainder is paid by the Plaintiff, that the Plaintiff did not intend to perform the said real estate.

- Around October 23, 2018, the Defendant returned KRW 17 million to the Plaintiff (after the first instance judgment was rendered).

[Grounds for recognition] The Plaintiff filed a claim for the payment of KRW 24 million (and damages for delay) plus a penalty of KRW 7 million in the initial payment amount, including the amount of KRW 17 million, in the absence of dispute, the evidence Nos. 1, 2, 7, and the entire purport of the pleading.

In this regard, the first instance court rejected the claim for refund of KRW 17 million for the amount already paid, and dismissed the claim for payment of KRW 7 million for penalty.

The Plaintiff filed an appeal against the part of the judgment of the court of first instance regarding the said part of the judgment against the Plaintiff, and subsequently claimed KRW 24 million, which was originally claimed for payment, and subsequently claimed only seven million won of the remaining penalty, excluding KRW 17 million of the purchase amount already returned.

Therefore, the issue in this court is whether the defendant should pay 7 million won penalty to the plaintiff.

argument and Judgment

A. According to Article 5 of the Plaintiff’s assertion, the seller may rescind the contract by repaying the amount of the down payment and rescind the contract.

The contract of this case was reversed by the defendant.

Therefore, the defendant should pay to the plaintiff the amount equivalent to the down payment (other than the return of the down payment) 7 million won and damages for delay.

B. In the conclusion of a contract for consideration, where the down payment has been received, the contract shall be due to reasons attributable to either of the parties unless otherwise stipulated that the down payment shall be a penalty in the nature of the cancellation money.