2012Gaba 17427 Return of the purchase price

A Kim

,20

April 11, 2013

May 9, 2013

1. The defendant shall pay to the plaintiff 45,00,000 won with 5% interest per annum from June 27, 2003 to July 13, 2012, and 20% interest per annum from the next day to the day of full payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

A. From December 199, the Plaintiff entered into a non-wheeled relationship with the Defendant and provided the Defendant with the financial support. Around July 1999, the Plaintiff purchased the above apartment from the Defendant with a deposit of KRW 50 million, including KRW 70 million, and around January 200, the amount of KRW 108 Dong 401 (hereinafter “the apartment of this case”) under the name of purchasing the apartment of KRW 25 million under the name of purchasing the above apartment of KRW 108 Dong 401 (hereinafter “the apartment of this case”). B. The Plaintiff purchased the above apartment of KRW 50,000 from the Defendant on August 11, 200 and transferred all rights to the apartment of KRW 50,000,000,000 for the purchase and sale of the above apartment of KRW 50,000,000,000 for KRW 50,500,000,000 for the purchase and sale of the apartment of this case.

D. Meanwhile, since the voluntary auction was conducted by the mortgagee on the apartment of this case, the above real estate was awarded to leapF on June 26, 2003, and the plaintiff participated in the above auction procedure, but did not receive any dividend.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1, 2, 3, 6, Eul evidence Nos. 1, 2, 4, and 6, the purport of the whole pleadings

2. Determination on the cause of the claim

According to the above facts, the reservation of this case was concluded on August 10, 2001, which is the date of the completion of the reservation, and thereafter, the defendant lost ownership of the apartment of this case and thus the plaintiff was unable to perform the obligation to register the transfer of the defendant. Accordingly, since the plaintiff cancelled the above sales contract, the defendant shall refund to the plaintiff the purchase price of 45,00,000,000 and the damages for delay calculated at the rate of 20% per annum under the Civil Act from June 27, 2003 to July 13, 2012, which is the date of delivery of a copy of the complaint of this case, from the next day to the date of full payment.

3. Judgment on the defendant's defense

A. Defenses against violation of Article 104 of the Civil Act

1) The defendant's assertion

The Defendant asserts to the effect that the instant reservation was null and void, since it was concluded in the course of maintaining an inhuman relationship with the Plaintiff, or the money paid by the Plaintiff to the Defendant was paid as compensation for an inhuman relationship.

2) Determination

Unlike the case where a person who received payment after illegal consideration claims the return of unjust consideration in itself or in lieu of the performance, the special agreement on the return of the payment itself or in lieu of the performance is valid unless the person who made the payment claims the return of unjust consideration in violation of social order. Here, whether the return agreement itself becomes null and void shall be determined by comprehensively taking into account all the factors to determine the violation of Article 103 of the Civil Act, including not only the original purpose of the return agreement itself, but also the developments leading up to the return agreement itself, the degree of illegality of both parties, and the process of concluding the return agreement. Meanwhile, the beneficiary must prove that the return agreement is null and void in violation of social order (see Supreme Court Decision 2009Da12580, May 27, 2010). This case’s promise was concluded with the Plaintiff with money received from the Defendant in the process of completing such a relationship with the original and the Defendant, and there is no reason to prove that the return agreement itself constitutes a kind of illegal consideration in violation of social order.

(b) Defenses of performance;

Since the defendant asserts that he paid the purchase price of this case in full, it is insufficient to recognize it only by the entries in the evidence Nos. 4 and 6, and there is no other evidence to prove that the defendant paid the purchase price of this case, the above defense by the defendant is without merit.

Since the defendant defenses that the claim of this case had expired by prescription, the extinctive prescription of the claim of this case shall run on June 26, 2003, where the defendant's obligation to transfer ownership to the plaintiff was impossible, and it is apparent in the record that the lawsuit of this case was filed on July 9, 2012, which was 10 years after the lapse of the ten-year period, so the defendant's defense is not reasonable.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Kim Gung-han