(영문) 수원지방법원여주지원 2019.01.22 2018가단55321

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(영문) 수원지방법원여주지원 2019.01.22 2018가단55321

계약이행청구의 소

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1. The plaintiff's claim is dismissed.

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

Reasons

Facts of recognition

On December 14, 2016, the Plaintiff and the Defendant concluded a sales contract consisting of KRW 650 million for the purchase price (hereinafter “instant contract”) with respect to the real estate listed in the attached list owned by the Defendant (hereinafter “instant real estate”).

On the day of the contract, the Plaintiff paid the contract deposit of KRW 120 million to the Defendant, and the remainder of KRW 530 million to be paid on March 2, 2017.

(Reasons for recognition) Facts without dispute, entry of Gap evidence 2, purport of whole pleadings.

In accordance with the instant contract, the Plaintiff Defendant did not perform the obligation to remove a building owned by a third party, which exists in the instant real estate and cancel provisional registration, prior to the payment date of the remainder.

In addition, the Defendant did not implement the agreement, even though it agreed to divide and transfer the instant real estate to the Plaintiff.

As the Plaintiff rescinded the instant contract on the grounds of the Defendant’s nonperformance, the Defendant should pay the Plaintiff the down payment of KRW 120 million and the penalty of KRW 120 million.

The removal of a household building existing in the real estate of this case is not the obligation of the defendant under the contract of this case, and even if such obligation is recognized, it is related to the plaintiff's obligation to pay the remainder.

Judgment

The plaintiff asserts that the defendant's obligation to remove the building and cancel provisional registration should be fulfilled first than the plaintiff's obligation to pay the remainder.

However, the following circumstances acknowledged by the evidence and the purport of the entire pleadings, namely, ① the Defendant’s obligation to remove a provisional building and cancel provisional registration, does not include the content that the Defendant’s obligation to remove the provisional building and cancel provisional registration should first be fulfilled than the Plaintiff’s obligation to pay the remainder, ② Article 3 of the above contract does not include the seller’s mortgage, superficies, and

유사 판례

-대법원 1980. 12. 30. 자 80마491 결정

-의정부지방법원고양지원 2015.06.11 2013가합4791

-창원지방법원 통영지원 2018.08.22 2018가단23628

-창원지방법원진주지원 2017.08.31 2016가단36146

-대법원 1985. 2. 11. 자 84마606 결정