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(영문) 서울고등법원 2017.08.18 2016나2081971
계약금반환등 청구
Text

1. Of the judgment of the first instance, the part against the plaintiffs falling under the following order of payment shall be revoked.

Reasons

1. Basic facts

A. 1) The Defendant: (a) from November 23, 2010 to June 30, 2014, the Seocho-gu Seoul Metropolitan Government D-282.9§³ and its ground (hereinafter “instant real estate”) owned by the Defendant in the Daea Credit Union (hereinafter “instant real estate”).

2) As to the instant mortgage, the sum total of maximum debt amount is 3,008,200,000 (hereinafter “instant mortgage”).

(2) After completing the registration of creation, E acquired the secured debt of the instant right to collateral security, and completed the supplementary registration on October 30, 2014.

On November 10, 2014, upon E’s application, the auction procedure for the instant real estate was initiated (Seoul Central District CourtF) and on December 24, 2015, the highest bidder was decided to permit the sale of G, the sales price of which was KRW 3,275,854,000.

B. On December 28, 2015, the Plaintiffs purchased the instant real estate from the Defendant in KRW 3,850,000,000, and the down payment amount of KRW 400,000,000 was paid at the time of the contract, and the remainder of KRW 3,450,000,000 was paid on January 29, 2016 (hereinafter “instant sales contract”).

(2) The Plaintiffs paid KRW 400,000,000 to the Defendant on December 28, 2015. (2) The contract (Evidence A (Evidence A) prepared at the time of the instant sales contract is indicated as follows:

Article 3 [Extinguishment of Rights, etc.] If there is a reason for restricting the exercise of ownership, or the shortage of public charges and other charges, a seller shall remove the defects and burdens of such rights and transfer its full ownership before the date of receipt of the balance, but the buyer shall pay the balance and settle the balance at the time of the balance.

Article 7 [Non-performance of Obligations and Compensation for Damages] (1) In cases where a seller or a purchaser has any default under this contract, the other party may demand in writing the person who has defaulted and rescind the contract.

(2) Where a contract is rescinded pursuant to paragraph (1), it shall be separate.

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