(영문) 울산지방법원 2016.09.22 2015나20513

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(영문) 울산지방법원 2016.09.22 2015나20513

가계약금반환

Text

1. The plaintiff's appeal is dismissed.

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

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. Basic facts

A. On March 28, 2014, the Plaintiff was under negotiation with the Defendant through a real estate intermediary on the purchase price for the purchase of Ulsan-gu Seoul Metropolitan Government 102 Dong 202 (hereinafter “instant apartment”) from the Defendant on March 28, 2014, and transferred the text message “C 102 Dong 202 and KRW 595 million to the Defendant on the same day.”

B. On April 15, 2014, the Plaintiff notified the Defendant that he/she did not wish to purchase the instant apartment.

[Ground of recognition] Facts without dispute, Gap evidence 1, 3, 5, Eul evidence 1-1, the purport of the whole pleadings

2. The parties' assertion

A. The Plaintiff’s assertion 1) In a situation where it cannot be deemed that the sales contract was established yet because it did not specify the specific contents of the sales contract between the Plaintiff and the Defendant, the Plaintiff, first of all, remitted KRW 5 million to the Defendant as the provisional contract amount, and was granted on the premise that the amount of the provisional contract would be returned if the contract is not concluded. As a result, the Plaintiff and the Defendant did not enter into the sales contract between the Plaintiff and the Defendant, and thus, the Defendant is obligated to return the said KRW 5 million to the Plaintiff.

Even if the Plaintiff merely expressed to the Defendant that he would not conclude a sales contract, and the Plaintiff did not waive the above five million won, it cannot be deemed that the sales contract was rescinded in accordance with the termination fee agreement and the above five million won was reverted to the Defendant.

3 Even if the sales contract for the apartment of this case was established, the above sales contract was cancelled due to the reasons attributable to the plaintiff.

Even if there is no special agreement between the plaintiff and the defendant to pay the above five million won as penalty, the above five million won as penalty does not naturally belong to the defendant as a penalty.

B. The plaintiff and the defendant asserted the apartment of this case.

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