The case holding that the buyer cannot seek for the payment of penalty in accordance with the agreement in addition to seeking the return of the down payment, on the grounds that the buyer provided a check of the number of shares which can not be collected immediately on the date of the payment of the intermediate payment, and the sales contract was lawfully rescinded by the buyer's notification of the buyer's intention not to perform the seller's obligation to transfer ownership, but the fundamental cause of the cancellation of the contract is not due to the seller's

Articles 2 and 548 of the Civil Act

Kim Jong-de Kim

Materns

1. The defendant shall pay to the plaintiff the amount of 67 million won and the amount of 5 percent per annum from August 29, 1991 to March 31, 1992 and the amount of 25 percent per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims are dismissed.

3. The costs of lawsuit are divided into two parts, one of which shall be borne by the plaintiff, and the other by the defendant.

4. The above paragraph (1) can be provisionally executed.

The defendant shall pay to the plaintiff 134,00,000 won with 25 percent interest per annum from the day following the day on which a copy of the complaint of this case was served to the day of full payment.

1. Fact of recognizing party members;

On April 10, 191, the plaintiff and the defendant concluded a sales contract with the defendant on April 10, 1991, 115.9 square meters of land site 1404, 138 square meters, and 340,000 won for the purchase price, and the down payment shall be KRW 67,000,000 for the purchase price, and the down payment shall be KRW 83,000,000 for the intermediate payment shall be paid on April 26 of the same year; the remainder 190,000,000 won shall be paid for the redemption of documents necessary for the registration of transfer of ownership; the fact that the defendant received 67,00,000,000 won from the plaintiff on the same day; the fact that the defendant did not dispute between the parties on the establishment of the contract, and each of the witness evidence No. 1,27,000,000 won for the witness testimony and testimony No. 1,27, and each of the witness testimony No.

(1) On February 22, 1991, the Plaintiff purchased the above real estate from the Defendant in the amount of KRW 320 million, and the down payment of KRW 50 million on the date of the contract; KRW 100 million on March 4 of the same year; and KRW 170 million on the remainder payment of KRW 170 million on April 30 of the same year; and paid KRW 50 million to the Defendant on the date of the contract (hereinafter referred to as the first contract); however, the Plaintiff notified the Defendant of the fact that the intermediate payment was not paid to the Defendant by the agreed date, and that the Defendant was unable to pay the said intermediate payment to the Defendant by the agreed date, the Plaintiff and the Defendant concluded the intermediate payment on behalf of the Plaintiff and the Defendant, as a result of the Nonparty, who arranged the conclusion of the above contract, and concluded the sales contract on behalf of the Defendant, more strictly agreed with the Plaintiff on the remainder payment.

(2) After that, around April 26, 17:00 of the same year, the Plaintiff’s agent, sought to issue 10 million won cashier’s checks, 10 million won cashier’s checks, 10 million won cashier’s checks, and 333 million won per face value of the issuance of Nonparty Y, to the Defendant, together with the Defendant, at the same time at the same time as the intermediate payment payment date under the instant sales contract, on April 26, 26, which is the date of the instant sales contract. However, the Defendant refused to accept the payment on the ground that the bank deposit time has already passed, and that the collection is unclear and the collection is not possible immediately, and the Defendant demanded to pay the intermediate payment in cash or by a cashier’s checks from the modern world located in Gyeyang-dong, Gyeyang-dong, Yangyang-dong.

(3) As such, the above Sace and Han Han-sung were waiting for the defendant in the above modern world around 10:00 on the 27th of the same month, they opened a deposit account in the above Han-dae's name at the joint branch of the Seoul Trust Bank. On the other hand, the above Sace and Han-sung deposited KRW 83,00,000 in the above cashier's checks and the number of shares in that deposit account.

(4) However, at around 12:00 on the same day, the Defendant confirmed whether the intermediate payment was deposited at the above bank's point at around 12:00, but confirmed that the intermediate payment was not deposited at the above bank's point on the 29th day of the same month, the Defendant notified the above party of the cancellation of the instant sales contract on the ground of the Plaintiff's intermediate payment payment payment payment payment. On the 29th day of the same month where the above Han commercial bank again confirmed that the intermediate payment was deposited at the above deposit account, and notified the Defendant of the receipt of the above intermediate payment. However, on the 29th day of May of the same year, the Defendant notified the Plaintiff of the refusal of receipt on the ground that the Plaintiff failed to comply with the above intermediate payment payment date, and the Plaintiff also notified the Defendant of the cancellation of the instant sales contract on the ground that the Defendant refused to receive intermediate payment and the remainder and failed to perform the obligation to present his intention to transfer ownership under the instant sales contract in advance.

2. Judgment on the plaintiff's claim

According to the above facts, the contract of this case between the plaintiff and the defendant was lawfully rescinded by notifying the defendant that the plaintiff would not receive the intermediate payment and the balance, by asserting that the contract was already rescinded on July 22, 1991, and that he would not perform his own obligation under the contract, and that the contract was rescinded lawfully. Thus, the defendant is obligated to return the down payment 67 million won already received as the performance of his duty to restore to the plaintiff, barring any special circumstances.

In regard to this, the Defendant agreed to pay to the Plaintiff a penalty of KRW 20 million upon the rescission of the first contract on the part of the above part payments other than the above part payments, and the amount of KRW 10 million returned to the Plaintiff after the termination of the first contract. In addition, the Defendant did not comply with the agreement to pay the above part payments at the same time. Moreover, it is possible to collect after April 29, 1991 the face value of KRW 33 million, which the Defendant intended to deliver to the Defendant for the payment of the above part payments, at the rate of KRW 14:50,000, which is to be collected after April 14, 1991. Thus, the instant sales contract does not provide the performance according to the principal contract. Thus, the instant sales contract is legally rescinded upon the Defendant’s rescission notice given by the Plaintiff

However, there is no evidence to acknowledge the fact that the Plaintiff agreed to pay the money other than the above intermediate payment to the Defendant at the time of the payment of intermediate payment, and furthermore, even though the offer of the above check does not provide performance according to the principal place of obligation, it cannot be immediately cancelled the sales contract of this case without demanding a reasonable period of time. As seen earlier, the Defendant's refusal to receive intermediate payment without demanding the Plaintiff to perform the payment within a reasonable period of time is recognized. Thus, the effect of cancelling the contract pursuant to the notification of the rescission of the above contract cannot be caused. Thus, the Defendant's above dispute on the premise that the sales contract of this case was lawfully rescinded due to the Plaintiff's delay of payment is without merit.

Meanwhile, the Plaintiff seeks to pay the penalty equivalent to the down payment to the Defendant on the ground that there has been an agreement on the penalty to compensate the buyer for the double the down payment when the seller has terminated the contract in the instant sales contract. As such, inasmuch as the sales contract in this case was terminated due to the Defendant’s breach of contract, it is not due to the Defendant’s breach of contract, but due to the Plaintiff’s refusal to pay the intermediate payment (the basis for cancellation of the contract is to deliver the check of the number of units that cannot be settled on the day of the payment date of the intermediate payment under a special agreement to keep the due date), the Plaintiff’s refusal to pay the late payment damages until the settlement date is made, and in this case, the Plaintiff cannot be deemed to have been entitled to receive the above intermediate payment in light of the above fact of recognition. Therefore, in light of the principle of trust and good faith required for transaction, the Plaintiff’s claim for penalty for breach of contract cannot be justified.

3. Conclusion

Therefore, the defendant is obligated to pay damages for delay at the rate of 5% per annum under the Civil Act from August 29, 1991 to March 31, 1992, and 25% per annum under the Special Act on the Promotion, etc. of Legal Proceedings, since the following day after the cancellation date of the contract for this case, the plaintiff's claim of this case is accepted within the above recognition scope, and the remainder is dismissed for reasons, and as to the burden of litigation costs, the defendant's decision is made in accordance with Articles 89 and 92 of the Civil Procedure Act and Article 199 of the Provisional Execution Act as to the declaration of provisional execution.

Judges Cho Jong-chul (Presiding Judge)