2020Na12219 Provisional contract proceeds

A

B

Ulsan District Court Decision 2019 Ghana30849 Decided April 8, 2020

may 4, 2021

June 1, 2021

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 3,00,000 won with 12% interest per annum from September 20, 2019 to the day of complete payment.

2. Purport of appeal

The same shall apply to the order.

1. Facts of recognition;

A. The Defendant decided to sell the instant apartment to the Defendant through a licensed real estate agent F, as the owner of the D Apartment E (hereinafter “instant apartment”) located in Ulsan-gu, Ulsan-gu C, and through a licensed real estate agent F.

B. On September 16, 2019, the Plaintiff received the following text messages from F, and transferred KRW 5 million to the Defendant’s account on the same day.

Address: The price for sale of D apartment E (the apartment in this case): 4.5 million won: the contract deposit in the current facility condition - part of the contract deposit 2019-09-16 (5.00,000) to be deposited into the account under the account. The seller's account number No. G (Defendant)- No. 10% deposit of the contract deposit - the remainder of the contract deposit (10% of the contract deposit and mutual consultation in December) at the time of preparation of the contract within one week from the date of preparation of the contract.As part of the contract deposit has the same effect as the contract deposit, if the contract is terminated, the seller may terminate the contract at the time of partial waiver of the contract deposit, and the buyer may terminate the contract at the time of partial waiver of the contract deposit.In this case, it is notified in writing prior to the deposit prior to the deposit.

D아파트 E호(이 사건 아파트) 매매1) 계약일시: 2019-09-19(목) 오후 6시 30분2) 장소: H부동산3) 준비물: 신분증, 도장, 계약금계약금은 매매금액의 10% 선에서 준비해 주시면 되고, 통장으로 보낼 수 있게 미리 한도액을 정해 놓으시면 됩니다. 9월 19일에 뵙겠습니다.

C. On September 19, 2019, the Defendant expressed his intention not to conclude the sales contract for the instant apartment, and remitted KRW 7 million to the Plaintiff’s account in the name of the Plaintiff on September 27, 2019.

【Reasons for Recognition (Omission)】

2. The plaintiff's assertion

The Defendant entered into a provisional contract on the instant apartment sales contract with the Plaintiff (hereinafter referred to as the “instant provisional contract”) and agreed to repay the amount of the provisional contract in the event that the seller terminates the instant provisional contract. The Defendant unilaterally reversed the instant provisional contract and refused to perform the obligation to conclude the sales contract on the instant apartment, and thus, is obliged to pay the Plaintiff KRW 10 million equivalent to the amount of the provisional contract as stipulated in the instant provisional contract, and as such, the Defendant only paid KRW 7 million out of that amount, and thus, shall pay the remainder of the unpaid amount to the Plaintiff.

3. Determination on the cause of the claim

A. Relevant legal principles

1) The cancellation fee contract and the contract for penalty is separate from each other. The cancellation fee contract refers to an agreement between the parties who agreed to cancel the principal contract by paying the cancellation money to the other party in particular, among the provisions of the reservation of the right to cancel the contract, i.e., a certain amount., an agreement between the parties who agreed to cancel the contract. In the event of default, a penalty is an agreement

2) Meanwhile, in the case of a down payment, in principle, it has the nature of a cancellation fee pursuant to Article 565(1) of the Civil Act; however, there is no such provision regarding a provisional contract deposit such as deposit money, and thus, it cannot be interpreted that a provisional contract deposit has the nature of a cancellation fee as a matter of course. Ultimately, it is a matter of interpretation of the intent of the parties involved in the provisional contract, which has the nature of a cancellation fee, whether and to what extent the statutory binding force of the provisional contract exists, and whether the received provisional contract deposit has the nature of a cancellation fee. Furthermore, only when there is a penalty contract

B. Determination

1) First of all, five million won, which the Plaintiff remitted to the Defendant, is a kind of deposit granted by the buyer based on the negotiation of the sales contract to be continued for the future by disclosing the intention of the buyer to enter into the sales contract to the seller, and is presumed to fall under the so-called "provisional contract deposit, which is premised on the repayment of part of the purchase price, but in the event that this contract is not concluded, it shall be returned in lieu of the payment of the purchase price (the Defendant also pointed out this point by means of a petition of appeal or a letter of correction of the name on July 2, 2020, and pointed out this point). Therefore, if both parties violate the contract or refuse to enter into the contract, it cannot be deemed that the agreement to pay the down payment amount equivalent to the down payment of the contract as the down payment or the down payment is naturally established.

2) However, in the case where the plaintiff and the defendant fail to perform the obligation to conclude the sales contract for the apartment of this case from F, the seller is entitled to terminate the sales contract at the time of waiver of the provisional contract, and the buyer is entitled to terminate the contract at the time of waiver of the provisional contract. The fact that the plaintiff and the defendant received the provisional contract without any objection is seen as above, and it is reasonable to view that there was a mutual agreement between the parties as to the fact that the provisional contract amount is to be cancelled according to the above fact of recognition.

3) However, as to whether there was an agreement stipulating the above provisional contract amount as penalty between the parties at the time of the conclusion of the provisional contract in this case, the following facts were acknowledged: (a) as to whether the Defendant withdrawn the intent to conclude the contract in this case and demanded the Plaintiff to pay the down payment, and paid 7 million won, which is a part of the Plaintiff, to the Plaintiff; (b) however, in full view of the following facts and circumstances acknowledged by the evidence and the purport of the entire pleadings, there is no evidence to prove that the separate penalty agreement was concluded between the parties. Thus, the above facts alone cannot be deemed to have been deemed to have the nature of penalty exceeding the cancellation amount, and therefore, the Plaintiff’s assertion is without merit.

A) In the instant case, the Plaintiff and the Defendant received 5 million won upon delivery of the text messages as seen earlier from the Licensed Real Estate Agent F, who received a request for brokerage of the instant apartment without face-to-face talking with each other.

B) According to the foregoing text messages, in a case where both parties violate a provisional contract or refuse to conclude a principal contract, there is no content that the amount equivalent to the provisional contract amount shall be paid as penalty. The so-called rescission deposit agreement that the cancellation may be cancelled by waiver of the provisional contract amount or by providing a double of the provisional contract amount is different from the agreement that sets the amount equivalent to the down payment at the time of the

C) Furthermore, there is no special circumstance that the Plaintiff and the Defendant agreed to conclude that they agreed to pay a penalty separately from the contents written in the foregoing text book, or that they agreed to consider the cancellation fee agreement as a penalty agreement. At the same time, it is hard to clarify that the Plaintiff voluntarily refused the Defendant’s performance obligation, and at the same time, the instant case is the basic case that the Defendant would not have caused the Defendant’s promise to pay a written statement. The content of the “written objection regarding the decision on the recommendation for settlement as of April 16, 2021,” provided that the Plaintiff and the Defendant did not have the penalty agreement.

4. Conclusion

Therefore, the plaintiff's claim of this case shall be dismissed as it is without merit. Since the judgment of the court of first instance with different conclusions is unfair, it is revoked and the plaintiff's claim is dismissed. It is so decided as per Disposition.

Judge Lee Jong-young

Judges Shin Sung-sung

Judges Park Jong-sik