(영문) 서울중앙지방법원 2017.11.24 2017나25283

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(영문) 서울중앙지방법원 2017.11.24 2017나25283

계약금반환 등

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1. Of the judgment of the court of first instance, the part against the defendant in excess of the following amount ordered to be paid shall be revoked.

Reasons

1. On October 7, 2016, the Plaintiff entered into a contract with the Defendant to pay the remainder of KRW 760,000,000 on the date of the contract, and the remainder of KRW 760,000,000 on October 31, 2016 (hereinafter referred to as “instant one contract”) with each land listed in the separate sheet (hereinafter referred to as “instant land”), as a whole, from the Defendant’s purchase price of KRW 850,00,00,00,000, in total, may be recognized by taking into account the overall purport of the pleadings in the statement in subparagraph 3.

2. Determination on the claim for cancellation of penalty

A. The Plaintiff asserted under the instant contract 1 that the Defendant, the seller of the instant land, failed to remove the defects and burdens of all rights, including the mortgage and superficies, and to transfer the full ownership by the due date. As such, the Plaintiff asserts that, on the grounds that the Defendant’s cause attributable to the Plaintiff, cancelled the instant contract, and sought reimbursement of KRW 100,000,000,000, which was paid to the Defendant, and the penalty of KRW 100,000,000, which was paid to the Defendant.

B. According to the reasoning of evidence No. 3, the plaintiff's obligation to pay the balance and the defendant's obligation to transfer ownership registration are recognized as having simultaneous performance relations. In the bilateral contract with simultaneous performance relations, a person who intends to cancel the contract on the ground of the other party's non-performance in the bilateral contract with the same simultaneous performance relationship may put the other party into delay in performance and may lawfully rescind the contract when the other party gives notice of performance within a reasonable period and fails to perform the contract within that period.

The Plaintiff provided the remainder of the obligation solely with the statement of No. 5.

there is no evidence to deem that the defendant has given notice to the defendant to perform his duty for a specified period.

In addition, evidence Nos. 3 and 6 are respectively.

유사 판례

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