2016Gadan5226892 Return of down payment

A

B

January 13, 2017

February 10, 2017

1. The plaintiff's claim is dismissed.

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

The defendant shall pay to the plaintiff 140,000,000 won and 70,000,000 won among them, 5% per annum from July 6, 2016 to the service date of a copy of the complaint of this case from September 8, 2016 to the service date of a copy of the complaint of this case, and 15% per annum from the following day to the day of complete payment.

1. Basic facts

A. On July 6, 2016, the Plaintiff entered into a lease agreement with the Defendant to pay the remainder of KRW 630 million on the date of the contract and the remainder of KRW 630 million on September 12, 2016 (hereinafter referred to as the “instant lease agreement”), and paid KRW 70 million to the Defendant the down payment amount of KRW 70 million.

B. On September 12, 2016, the remaining payment date of the instant contract, the Defendant agreed to cancel the registration of the establishment of a collateral security (hereinafter referred to as the “registration of the establishment of a collateral security”) consisting of the debtor, the National Federation of Korea (hereinafter referred to as the “NF”), the maximum debt amount of KRW 744 million, and the debtor, the defendant corporation, the plant plant, the plant plant, the plant, the plant, the plant, the plant, the Republic of Korea, the Austria, and the maximum debt amount of KRW 750 million, and the registration of the establishment of a collateral security (hereinafter referred to as the “registration of each instant case” in addition to the registration of the Suhyup collateral security). On September 12, 2016, the Defendant agreed to cancel the registration of the establishment of a collateral security (hereinafter referred to as the “registration of each instant collateral security”). The other party may give written peremptory notice to the defaulted person about the termination of the contract and the liquidated damages on the ground of nonperformance

C. At around 10:30 on September 8, 2016, E, the Defendant’s husband, requested the Plaintiff to modify the terms and conditions of the instant lease agreement by not cancelling all of the registration of each of the instant collective security rights through a licensed real estate agent F, which arranged the instant agreement, and then reducing the maximum debt amount of the registration of the Suhyup-mortgage in KRW 20 million among which the Plaintiff requested to modify the terms and conditions of the instant lease agreement. On the other hand, F, by presenting a compromise change to the priority of the registration of the Suhyup-mortgage, was promoted by suggesting that the agreement was not consented.

D. In this process, E demanded the Plaintiff’s account number on September 8, 2016, and F sent a text message to the Plaintiff on the following grounds: (a) around September 17, 2016, it is good for the Plaintiff to legally process the case of rescission of the contract; (b) the Plaintiff sent the Plaintiff’s account number to F at around 18:30 of the same day; (c) the Plaintiff notified the Plaintiff of its account number (Korean bank G); (d) on September 15:34, 2016, the Defendant sent a text message to the Plaintiff on September 15, 2016, stating that “I wish to perform the special agreement as of September 14:01 of the same day; and (d) the Plaintiff sent a text message to the Plaintiff on September 8, 2016 as the Defendant’s unilateral intention, and thus, the Defendant did not request the Plaintiff to terminate the contract as of September 8, 2016.

E. On September 12, 2016, the Plaintiff expressed his intent to refuse performance of the obligation to cancel the registration of each of the instant right to collateral security on September 8, 2016. As such, the instant contract was rescinded on September 8, 2016, and since the Plaintiff expressed his/her intent to accept the Defendant’s declaration of intent to cancel the contract, the instant contract was rescinded, and the Defendant presented a certificate of intent to pay the down payment amount of KRW 70 million and the penalty amount of KRW 70 million to the Defendant. On September 13, 2016, the Defendant sent a lawsuit to the Plaintiff on September 10, 2016, “The Defendant sent the remainder to another director on September 10, 2016, which was the remainder of the registration of the instant right to collateral security, and the Plaintiff was expected to receive the remainder of the registration of the right to collateral security from the Plaintiff, and thus, the Plaintiff paid the remainder of the registration of the right to collateral security on September 26, 2016.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 through 7 (including branch numbers for those with additional numbers; hereinafter the same shall apply) and the purport of the whole pleadings

2. Summary of the plaintiff's assertion

A. The Defendant demanded that the contract of this case be rescinded by the Plaintiff on the ground that the Plaintiff did not accept the unilateral demand of the Defendant regarding the cancellation of the registration of the Suhyup-mortgage, and thus, the Defendant had expressed an intention to rescind the contract of this case, and thus, the Defendant expressed an intention not to perform in advance one of the parties in the bilateral contract upon the Defendant’s declaration of intention not to perform any obligation under the contract of this case. Thus, it constitutes a refusal of performance.

B. According to the instant contract, a written peremptory notice to the other party in default and the contract may be rescinded. However, in the case of non-performance, the Defendant does not need the peremptory notice of performance, and the Defendant also expressed his intent of rescission through F. Therefore, the instant contract was lawfully rescinded on September 8, 2016.

C. Therefore, the Defendant is obligated to pay to the Plaintiff the down payment of KRW 70 million received by the Defendant due to the restitution following the rescission of the instant contract, the penalty of KRW 70 million due to the illegal refusal of performance, and the damages for delay therefrom.

3. Determination

A. Whether the instant contract was lawfully rescinded on September 8, 2016

In light of the following facts and circumstances, which are acknowledged by comprehensively considering the above basic facts, Eul evidence Nos. 1 through 7, and witness E’s testimony, the evidence and witness testimony alone are insufficient to recognize that the contract in this case was cancelled due to the plaintiff’s declaration or origin of the contract cancellation due to the reasons attributable to the defendant, such as non-performance of the contract, and there is no other evidence to acknowledge it differently.

1) On September 8, 2016, before the remainder of the contract of this case, E, the husband of the Defendant, who is not the Defendant, called the office of licensed real estate agents working for F on the phone, and requested H, the wife of F, to reduce the maximum debt amount of the registration of the Suhyup-mortgage mortgage concerning the building of this case, and F and H promoted the modification of the contract of this case through text messages to the Plaintiff. As such, the Defendant refused to perform the performance of the contract of this case according to the Plaintiff’s genuine intent at the time of the occurrence of the contract.

It is difficult to see it.

2) Although E is not a party to the instant contract, although E is the Defendant’s husband, it is difficult to view the conclusion of the instant contract or the modification of the terms of the instant contract as a matter of daily home affairs as stipulated in Article 827(1) of the Civil Act, and therefore, it cannot be said that E has the right of representation. The Plaintiff asserted that F confirmed the Defendant and notified the Plaintiff of the refund of the down payment. Thus, the Plaintiff asserted that it was ratified by the Defendant, but the witness F’s testimony corresponding thereto is difficult to believe, and even if the Defendant was to notify F of the Plaintiff’s account, it is difficult to view that the Defendant expressed his intent of refusal of the performance of the instant contract at the time based on the following circumstances.

3) In addition, a licensed real estate agent who arranged the instant contract concerning the instant building between the Plaintiff and the Defendant is F. E is not F, but F, and H is aware of the Plaintiff’s account necessary for the return of down payment in the process of dividing a talk about the cancellation and reduction of the registration of the right to collateral security. It cannot be said that H, not the delivery of the instant contract, exchanged meaningful intentions or confirmed its intention regarding the modification or the maintenance of the performance of the instant contract with E, not the Defendant’s agent, cannot be said to have confirmed the Defendant’s final intention of refusing the performance of the contract.

4) Even if there were any nonperformance by the Defendant, in order for the Plaintiff to rescind the instant contract, the Plaintiff may demand in writing the Plaintiff to perform the contract and rescind the contract. The Plaintiff is the Plaintiff who notified the Plaintiff in writing before September 12, 2016 and did not cancel the contract. As such, the Plaintiff cannot be deemed to lawfully cancel the instant contract.

5) The Plaintiff asserts that the contract in this case may be rescinded without a peremptory notice since the Defendant clearly expressed his/her intent not to perform the contract in this case. However, the refusal, one of the non-performances, is capable of performing the obligation, with the intention of having the obligee not to perform the obligation, and ultimately, objectively indicating that the obligee had no intent to perform the obligation, and thus making the obligee no longer expected to perform the obligation more objectively (see Supreme Court Decision 2004Da22971, Nov. 9, 2006). In the case of rescission of the contract due to such non-performance, the requirements for rescission of contract are mitigated when comparing the contract with the other party’s highest and simultaneous performance as the other party’s refusal to perform the obligation does not require the other party’s own obligation to be performed, and the intention of implied refusal is clearly recognized in light of the circumstances in order to recognize implied refusal by taking into account the various circumstances at the time of the contract or after the contract (see Supreme Court Decision 2010Da7385, Feb. 10, 2011).

6) In the instant case, it is difficult to view that the Defendant, as the party to the instant contract, clearly expressed to the Plaintiff the intent to refuse the performance of the instant contract solely with each text message sent and received by F or H, and even if the Defendant requested the Plaintiff to modify or modify the instant contract, it may sufficiently arise in light of the prevailing circumstances. Therefore, it is difficult to deem that the Defendant explicitly expressed the intent to refuse the performance even if it had been explicitly expressed.

7) The Plaintiff confirmed the fact that E or the Defendant demanded a correction or modification of the terms and conditions of the instant contract from F or H through text messages, and notified F of its account number to F, and did not directly verify the Defendant’s intent to perform the contract with the Defendant’s phone number known to the Defendant, as well as the Defendant expressed F’s intent to perform the contract under the instant contract on the day the instant case was punished, and such intent was delivered to F through F. As such, even if the Defendant expressed his intent to terminate the contract to the Plaintiff through F, etc., even if the Defendant expressed his intention to cancel or reverse the contract, it cannot be said that the Defendant clearly expressed his intention to maintain the contract, in light of the circumstances at the time and the actions of the Defendant committed by the Defendant.

8) Furthermore, at the same time, the Defendant received the remainder from the Plaintiff on September 12, 2016 for the performance of the instant contract, and confirmed the amount of actual loan obligations in order to cancel the right to collateral by repaying the several agreed collateral obligations set up on the instant building with the repayment of the obligation to collateral security and cancelling the registration of collateral security established on the instant building on September 12, 2016. Moreover, the Defendant was deemed to have prepared for the performance of the instant contract on September 9, 2016, by notifying the Plaintiff of the performance of the instant contract and necessary documents, and contacted the Plaintiff on September 12, 2016, the remainder of the Plaintiff’s remainder, and requested the Plaintiff to perform the contract by extending the remainder of the Plaintiff’s remainder on September 30, 2016.

B. Sub-determination

Therefore, the Plaintiff’s rescission of the instant contract premised on the Defendant’s nonperformance is unlawful, and the Plaintiff’s assertion cannot be accepted.

4. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Lee Jong-soo