(영문) 서울북부지방법원 2019.03.21 2018나36135

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(영문) 서울북부지방법원 2019.03.21 2018나36135

위약금

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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.

Reasons

1. The reasoning of this court’s judgment citing the judgment of the court of first instance is as follows, except for additional determination as to the Plaintiff’s assertion, and thus, it is consistent with the reasoning of the judgment of the court of first instance.

2. Additional determination

A. The Plaintiff asserted that the Plaintiff had expressed his intent to refuse performance by demanding the Defendant to cancel the contract and return the down payment, and the Defendant also expressed his intention not to perform the contract by disposing of the instant real estate to a third party, and thus, the instant sales contract was implicitly rescinded upon mutual agreement between the Plaintiff and the Defendant as to the fact that there was no intention to maintain the instant sales contract any longer.

Therefore, the defendant is obligated to return the down payment of KRW 10,000,000 to the plaintiff by restoring the contract termination to the original state.

B. Determination contract cancellation or rescission contract is a new contract, regardless of whether the contract is rescinded or not, which provides that both parties to the contract shall terminate the validity of the existing contract by agreement and return to the same state as that of the previous contract had not been concluded from the original date. The requirement is that the agreement is generally concluded in order to cancel the agreement, as in the case of the case of the formation of the contract, the conflicting declaration of intent, such as the offer and acceptance of the contract, shall be consistent. In order to establish such an agreement, the contents of the agreement expressed by

Of course, it does not necessarily require an agreement on reinstatement at the time of termination of the contract, but it is reasonable to cancel the contract without any agreement on the return of the down payment, intermediate payment, and compensation for damages already paid in the event of termination of the contract, in light of our rule of experience.

Supreme Court Decision 92Da4130, 4147 delivered on June 23, 1992

참조조문

-민사소송법 제420조

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