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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On March 14, 2018, the Plaintiff purchased KRW 661 square meters (hereinafter “instant land”) from the Defendant for KRW 190,000,000,000 prior to C in Nam-si, Namyang-si (hereinafter “instant sales contract”); included trees and lost trees in the subject matter of sale; and if a seller or a purchaser fails to perform the terms and conditions of the sales contract, the other party may notify the person who failed to perform the contract in writing, and the other party may cancel the contract. As to damages arising from the cancellation of the contract, the Plaintiff agreed to regard the down payment as the basis for compensation for damages (Article 7).
B. The Plaintiff paid the Defendant the down payment of KRW 19 million on the same day.
[Ground of recognition] Unsatisfy, Gap evidence Nos. 1 and 2, the purport of the whole pleadings
2. The assertion and judgment
A. After the Plaintiff’s assertion, the Defendant moved out 10 glue tree, glue tree 2glue tree, 1glue tree 1glue tree, and glue tree 1glue tree, etc., which were planted on the instant land that was the Plaintiff’s ground of the instant sales contract. This constitutes an important breach of the instant sales contract. Since the Plaintiff lawfully rescinded the instant sales contract on the ground of the Defendant’s nonperformance pursuant to Article 7 of the instant sales contract, the Defendant is obligated to pay the Plaintiff the down payment of KRW 38,00,000 (=the down payment of KRW 19,000,000) and damages for delay.
B. 1) In order to cancel a contract on the ground of nonperformance under Article 544 of the Civil Act, the contract shall not be rescinded unless the obligation in question is determined as unnecessary in accomplishing the purpose of the contract, and if the purpose of the contract is not fulfilled, it shall be the principal obligation to the extent that the obligee would have not concluded the contract. The contract shall not be rescinded unless it is merely for the obligee to perform the incidental obligation that is not fulfilled (see Supreme Court Decision 2005, Nov. 25, 2005).