(영문) 전주지방법원 2018. 2. 2. 선고 2016가합2955 제2민사부 판결

B. The amount calculated at the rate of 5% per annum from April 9, 2015 to February 2, 2018, and 15% per annum from the following day to the date of full payment to the Plaintiff 15% per annum, respectively, to the 25,015,00 won and each of the above amounts to the 25,015,00 won.

sub-payment.

2. The Plaintiff (Counterclaim Defendant) administrative agency shall pay to the Defendant (Counterclaim Plaintiff) 187,40,00 won and 9.44% per annum from November 1, 2016 to November 30, 2016; 10.44% per annum from December 1, 2016 to January 29, 2017; 11.44% per annum from January 30 to April 29, 2017 to April 29, 2017; and 12.4% per annum from April 30, 2017 to June 5, 2017; and 15% per annum from June 6, 2017 to June 5, 2017.

3. The plaintiff (Counterclaim defendant)'s main main claim and the plaintiff's main claim, the investigation agency, the investigation agency, the investigation agency, and the investigation agency's main main claim, and each of the remaining preliminary main claims are dismissed.

4. The costs of litigation are, in total, between the Defendant (Counterclaim Plaintiff) and the Plaintiff (Counterclaim Defendant).

The part incurred between the Plaintiff (Counterclaim Defendant), the Defendant (Counterclaim Plaintiff) and the Plaintiff, the Defendant (Counterclaim Plaintiff), the Plaintiff (Counterclaim Plaintiff) and the Plaintiff, the gas service provider, and the 10% of the amount that occurred between the investigation agency, the 90% of the amount that occurred between the Plaintiff (Counterclaim Plaintiff) and the Plaintiff, and the 10% of the amount that occurred.

5. Paragraphs 1, 2 and 1 may be enforced provisionally.

Purport of claim

1. Main elements;

(a)in the principal place:

Defendant (Counterclaim Plaintiff, hereinafter referred to as “Defendant”) shall:

1) As regards KRW 281,100,00, among the amount of KRW 46,850,000, the amount calculated from April 8, 2015 to KRW 117,125,00 from June 1, 2015, KRW 117,125,00 from July 1, 2015 to the delivery date of duplicate of each complaint of this case, the amount of KRW 6% per annum from July 1, 2015 to the delivery date of duplicate of each complaint of this case and KRW 15% per annum from the following day to the full payment date.

2) 원고 ■에게624,600,000원과 그중 62,460,000원에 대하여는 2015. 4. 8.부터,156,150,000원에 대하여는 2015. 6. 1.부터, 156.150,000원에 대하여는 2015. 7. 1.부터,249,840,000원에 댸하여는 2016. 4. 15.부터 각 이 사건 소창 부본 송달일까지는 연6%,각 그 다음날부터 갚는 날까지는 연 15%의 각 비율로 계산한 돈을 지급하라.

3) As regards KRW 250,150,00 and KRW 25,015,00 among the 25,000 won, the amount of KRW 9,62,537,50 from June 1, 2015 to KRW 62,537,50 shall be paid annually from July 1, 2015 to the delivery date of a copy of each complaint of this case from April 20, 2016 to the delivery date of a copy of each complaint of this case, and KRW 15% per annum from the next day to the date of full payment.

4) As regards KRW 250,150,00 and KRW 25,015,00 among the amounts of KRW 25,00,00, the amount shall be paid from April 9, 2015; KRW 62,537,50 from June 1, 2015; KRW 62.537,50 from July 1, 2015; KRW 100,060 from April 20, 2016 to the delivery date of a duplicate of each complaint of this case; and KRW 6% from the next day to the date of full payment; and KRW 15% from the day of full payment to the day of full payment.

(b)for the preliminary purpose:

The defendant shall pay to the plaintiff 187,40,00 won, 249,840,000 won, 100.60,000 won to the plaintiff, and 100,060,000 won to the plaintiff / / 100,000 won, and 5% per annum from April 8, 2015 to the delivery date of a duplicate of the claim of this case, and 15% per annum from the next day to the day of full payment.

2. Counterclaim;

Text

Paragraph (2) shall apply.

Reasons

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Facts of recognition;

A. The Defendant: (a) constructed and decided to sell the sales and neighborhood living facilities in the competent administrative agency in the city of the Jeonju-si (hereinafter referred to as “the commercial building in this case”); and (b) entered into a sales agency contract with the company (hereinafter referred to as “sale agency”) for the commercial building in this case.

B. The plaintiffs, through employees of the sales stand unit, will purchase each commercial building listed below (hereinafter referred to as "each commercial building of this case") between the defendant and the defendant as follows:

The sales contract of this case (hereinafter referred to as the "sale contract of this case") was concluded.

C. The plaintiffs paid the money stated in the "total amount of payment" as the purchase price to the defendant as stated in the following table 1:

Table 1>

Serial 114, April 8, 2015, 8.468, 50, 500, 2005, 2005, 2005, 2005, 2005, 2005, 2005, 2005, 2005, 205, 200, 205, 2005, 205, 2005, 205, 200, 205, 205, 205, 200, 205, 205, 205, 200, 205, 205, 200, 205, 2005, 205, 2005, 205, 2005, 200, 2000, 2000, 2005, 4606, 206,15,2005, 2006

D. On June 29, 2016, the Plaintiffs sent to the Defendant a content-certified mail containing their intent to set up or cancel the sales contract for commercial buildings sold to them and served around that time.

[Reasons for Recognition] Unsatisfy, entry in Gap evidence 1 and 2 (including virtual numbers; hereinafter the same shall apply), the purport of the whole of the arguments

2. Judgment on the plaintiffs' primary claims

(a) Whether a contract for sale in lots is cancelled due to default;

(i)The plaintiff's assertion

The Plaintiffs rescinded each of the instant sales contracts on the grounds of the Defendant’s nonperformance of obligations as set forth in paragraphs (a) and (b) above. Therefore, the Defendant is obligated to return the sales price already received to the Plaintiffs as restitution and the statutory interest thereon.

A) The Defendant advertised that ① the salesroom occupants of the previous bank were determined in the shopping mall Nos. 114 (A), 115, 116, and 117 (A) to the Plaintiff 4, 100, and 117 (A). ② The Defendant advertised to the Plaintiffs that the instant sales contract was scheduled to move in, and that approximately 10% and 12.8% of the rent rate was guaranteed. The said advertisement was incorporated into each of the instant sales contract, but the Defendant failed to implement it.

B) The Plaintiff 117 and 128 had shopping districts 117 and 128, which were sold in lots by the relevant administrative agency, the relevant administrative agency, and the relevant administrative agency, and accordingly, there was a significant limitation on the utilization of the commercial space. The Defendant did not notify the above Plaintiffs of the existence of the aforementioned columns, etc. despite their duty to notify them.

2) Determination

a)Determination as to the failure to comply with the shop occupants agreement of the North Korean bank (Si/Gun/Gu).

First of all, we examine whether the Defendant made an advertisement with the above plaintiffs that the salesroom occupants of the Jeonbuk Bank have been determined. However, in light of the following circumstances acknowledged in accordance with the entries in the evidence Nos. 2, 3, and 4 and the purport of the claim for the transfer of pleadings, "the salesroom occupants of the Jeonbuk Bank have advertised to the persons who caused the sales consultation, and the contents of the advertisement have been entered in the Pamps and leaflets" is difficult to believe that the testimony of the supervisory agency of the witness was correct, and there is no other evidence to acknowledge this.Therefore, this part of the assertion of the members, which is premised on the premise that the Defendant had advertised that the sales store of the Jeonbuk Bank was determined, is not accepted.

① The above Plaintiffs are not able to submit objective evidence, such as leafletss, leafletss, and electric complexes, in which the content of salesroom occupants of the former bank is indicated. ② The contents of the Defendant’s presentation of the slips, leafletss, and the contents of the tender announcement, are not included in the phrase on the determination of salesroom occupants of the former bank. ③ If the testimony of the said witness service provider is true, the Defendant’s partial leaflets contains the sales advertisement of the former bank and did not enter such advertisement in some leafletss. However, it does not seem that the Defendant did not have any different content on the sales store of the former bank.

B) Other determination on the assertion on the salesroom occupants and the agreement on guaranteeing the return on rent (Plaintiffs)

According to Gap evidence No. 13 and witness testimony of / 13, it is recognized that the defendant advertised that this case's shopping mall, etc. will be located in the commercial building of this case and that the rent rate will be approximately 10% or 12.8% when the commercial building was sold in lots and leased.

However, in light of the following circumstances acknowledged based on the aforementioned evidence and facts, advertising about the scheduled salesroom occupants and the rate of rent on the part of the defendant's side presented prospects, and it is difficult to readily conclude that the advertisement was incorporated into the contents of each sales contract of this case, and there is no other evidence to acknowledge that it was incorporated into the contents of each sales contract of this case. Accordingly, the plaintiffs' assertion on

① The sales contract of this case does not state any content related to the sales of the clothing store and the rate of return on rent. ② The Defendant only advertised that the sales of the clothing store was scheduled for the sale of this case, but did not display it as the determination of the salesroom occupants. Since each sales contract of this case was merely unreasonable, and it is likely that the sales shop occupants will not conclude the sales contract according to the final judgment of the business entity, such as Ireland, etc., in fact, it may be interpreted that the sales shop occupants are dynamic. ③ Whether the sales market occupants of this case are leased or the rate of return on rent are normally sold and the sales market of this case

Inasmuch as it is anticipated under the premise that this would be done properly, it would have been expected that, even with the fact that the buyers including the plaintiffs, would not be leased as if they were advertised by the defendant, or that the return of return may not be guaranteed. (4) The defendant did not agree to compensate the plaintiffs for the profits arising from the return of return of rent offered to the plaintiffs in the event that the commercial buildings purchased by the plaintiffs are not leased.

C) Determination as to the assertion regarding the violation of the duty to explain on the existence of columns, etc. (including Plaintiffs investigation agencies, investigation agencies, investigation agencies, etc.)

Article 544(1) of the Civil Act provides for the right to statutory rescission which is due to delay of performance, and Article 546(2) of the Civil Act provides for the right to statutory rescission due to impossibility of performance. In light of the above provisions, delay of performance or impossibility of performance, which is the requisite for the right to statutory rescission, refers to a case where one party fails to perform his/her obligation under the contract, on the premise that the contract has already been concluded between the parties. It is reasonable to interpret that it does not mean a case where the obligation

However, the defendant's obligation to explain can only be the defendant's obligation in the process of concluding each sales contract of this case, and it cannot be seen as the defendant's obligation in the process of performing each sales contract of this case. Thus, the above violation of the duty to explain cannot be viewed as the legal ground for revocation. Therefore, the above committee's assertion on different premise is rejected.

(b) Whether a sales contract is cancelled for the purpose of mistake or deception of motive induced; and

1) The plaintiffs' assertion

Each of the instant sales contracts was concluded by mistake or deception of motive caused by the Defendant as set forth in the following (a), (b), and (c). For the same reason, the Plaintiffs cancelled each of the instant sales contracts. Accordingly, the Defendant is obliged to refund each of the sales prices already paid to the Plaintiffs and the statutory interest on the interest accrued therefrom.

A) Since the Defendant advertised that the salesroom occupants of the pre-North Bank Nos. 114 and 117 sold in lots was determined, it is an error of motive and significant part.

B) In the process of concluding each of the instant sales contracts, the Defendant advertised the salesroom occupants and the rent rate as described in Article 2-A(1) through the sales advertisement, etc., and accordingly, the Plaintiffs concluded each of the instant sales contracts that caused mistake in the key parts of each of the instant sales contracts.

C) There are columns such as the following table 2, in the commercial buildings sold in lots by the Plaintiff 4, 4, 4, or 4, and the Defendant, even though it was obligated to notify the existence and state of the columns at the time of conclusion of the sales contract, was deceiving the above Plaintiffs by failing to notify them.

2) Determination as to the allegation of revocation on the ground of mistake in motive for salesroom occupants in the previous North Korean bank (the Plaintiff’s complaint is not recognized that the Defendant placed an advertisement that the salesroom occupants in the previous North Korean bank were fixed to the Plaintiff’s / her investigation agency, or the / her investigation agency. Therefore, even if the above Plaintiffs anticipated that salesroom occupants in the previous North Korean bank would be fixed, it is difficult to say that it was caused by the Defendant. Accordingly, this part of the Plaintiffs’ assertion on

3) Determination as to the assertion on revocation on the ground of mistake in the motive for salesroom occupants and the return on rent (Plaintiffs)

피고가 이 사건 상가건뭍에 이랜드 매장 등이 입점될 예정이라고 광고한 사실, 이 사건 상가건물를분양받아 임대할 경우 일정한 임대수익률이 예상된다고 광고한 사실은 앞서 본 바와 같다.

However, it is merely a kind of presumption that the Defendant’s explanation on the possibility of commercial rent and the return on rent, etc. merely presents the prospects or estimates. Even if the Plaintiffs believe that the above stores will be located, there is no evidence to deem that such expectation was merely an error of motive and that it was used as the content of the contract by indicating it in the contract process. Moreover, it is difficult to determine that the content of the above advertisement constitutes an important part of the sales contract as much as it has a significant impact on the conclusion of the sales contract. Accordingly, it is rejected

4) Determination as to the allegation of revocation on the ground of existence of columns, etc.

A) Facts of recognition

① There are columns, etc. as listed below in the commercial buildings sold in lots by the above plaintiffs:

Table 2

순번수분양자 및분양목적물계약당시 분양면적(m2)기둥의 존부 및위치환풍구 존부 및위치소화전 존부 및위치점포침범 기둥 등의 면적전용공용계1원고 ■(117 호)63.42021.01084.4303 개/ 앞쮹 벽면가윤데,정중앙,뒤쪽 벽면가운데1 개/ 좌측 벽면앞부분없음1.2632m2(가로 60cm, 세로 50cm 기둥 2개,가로 60cm, 세로 60cm기둥 1개, 가로 16cm,세로 189.5cm 환풍구 1 개)2원고 ■(128호)60.20619.95080.1562 개/좌측 벽면 앞쪽과뒤쪽없음좌측 뒷부분에있었다가2017. 2. 27.경이전됨2.646m2(가로 96cm, 세로135cm. 기등 1개, 가로 135cm, 세로 100cm기둥 1개)

(2) The employees of the sales stand-out events did not accurately explain the existence of the columns, the location and the size of the area occupied by the columns, the existence of the fire hydrant and the location of the fire hydrant and the location thereof, etc., even though they did not inform the above plaintiffs of the direct price at the time of entering into a contract for sales of buildings in units or sales.

③ Some (No. 3) of the design drawings of the commercial building of this case are located in the location where the pillar exists. However, there is no separate phrase that can be known as to the meaning of the pole. In addition, the indication of 'Mai(Mai(Mai)(Mai)(Mai(Mai)(Mai(Mai)(Mai(Mai(Mai)(Mai(Mai(Mai)(Mai(Mai(Mai

(4) The tample set up in 117 of a commercial building shall be installed on the left-hand glass wall, and the lower part of the glass wall (189,5 cm, height 110 cm) shall be visible.

(5) The Defendant did not pay a separate sales price for commercial buildings without columns, such as reducing the sales price by replacing the buyers of commercial buildings in which columns exist compared to the buyers of commercial buildings in lots.

6. As to the ratio of the exclusive use area by columns, etc., about 117 commercial buildings sold in lots by the Plaintiff gas service agency is about 1.99% (i.e., about 1.2632 square meters in total of the columns, ruptures, etc.)

The area for exclusive use is 63.420 square meters, 128 commercial buildings, which are sold by the competent administrative agencies, and 4.39% (=a total of 2.646 square meters ± an exclusive area of 60.206 square meters).

7) The Plaintiff 128, which was sold in lots by the 4th / 4th / 4th / 4th 201, had a fire hydrant been installed. The said Plaintiffs could not use the said commercial building properly until the fire hydrant is transferred, on the ground that there is a possibility of violating the Act on Fire Prevention, Installation, Maintenance and Safety Control of Fire-Fighting Systems, and Fire-Fighting Systems.

[Reasons for Recognition] Unsatisfy, the images of Gap evidence 1-4, 5, 11, and 12, and the result of the on-site inspection by this Court, the purport of the whole pleadings

B) Determination as to Plaintiff 1’s assertion

In full view of the above facts of recognition, it is reasonable to view that the commercial building 117, which was sold by the Plaintiff / Plaintiff 17, has a considerable limitation in the utilization of the space of the commercial building, such as that the view of view is cut off due to the columns and ventilation and the limitation on customers and business owners, etc. Therefore, it is determined that the Defendant, as a seller, did not explain the existence of columns, etc. to the Plaintiff / The Defendant, even though

Therefore, inasmuch as the sales contract that the Plaintiff entered into with the Defendant was lawfully revoked by the Plaintiff’s declaration of cancellation on June 29, 2016, the sales contract entered into with the Defendant, as seen earlier, the Defendant is obligated to return the sales price that was paid to the Defendant, and the Defendant is obligated to return legal interest, etc. on the sales price of KRW 624,60,000, which was paid to the

C) Determination as to Plaintiff 1’s assertion

In light of the fact that a pole is installed on a wall or a pole in the commercial building No. 128, where a 128 building was sold by the competent administrative agency, and that a hydrant already installed has been transferred to another place, etc.

It is difficult to readily conclude that the use of the space of the above shopping mall due to the columns and fire hydrants takes place, and even if the defendant did not explain to the above plaintiffs on the existence and condition of the columns and fire hydrantss, it is difficult to determine it as deceiving them. Therefore, this part of the plaintiffs' assertion is not accepted.

5) Sub-committee

Therefore, the defendant is obligated to pay the plaintiff / the above 624,60,000 won and damages for delay calculated at the rate of 15% per annum under the Commercial Act from September 2, 2016, which is deemed reasonable to dispute over the existence and scope of the defendant's obligation to pay from September 2, 2016, which is the date of delivery of a duplicate of the complaint of this case, which is deemed to be a malicious possessor pursuant to Article 749 (2) of the Civil Act, to the plaintiff / 15% per annum under the Commercial Act until February 2, 2018, which is the date of the decision of this case, and from the next day to the date of full payment (the plaintiff / 100 per annum from the date of payment of the down payment, the first intermediate payment, the second intermediate payment, and the balance, which is calculated at the rate of 6% per annum under the Commercial Act, but it is reasonable to deem that the defendant's appeal against the beneficiary of this case constitutes damages for delay in bad faith.

3. Determination as to the ancillary claim of the Plaintiff / her investigation agency, investigation agency, and investigation agency

A. The plaintiffs' assertion

For the following reasons, the defendant is obligated to pay the money equivalent to 40% of the purchase price and damages for delay to the plaintiff investigation agency, investigation agency, or investigation agency (hereinafter referred to as the "Indication Advertisement Act") or to compensate for tort under Article 10 of the Act on Fair Labeling and Advertising or Article 750 of the Civil Act.

A) The Defendant made a false and exaggerated advertisement on the possibility of salesroom occupants and rent rate as described in Article 2(a)(1) of the Act on Labeling and Advertising, and made a false and exaggerated indication and advertisement with respect to the said Plaintiffs as the buyers, and (2) an advertisement that the sales price of the commercial buildings sold by the said Plaintiffs is lower than the sales price or sales price of the neighboring commercial buildings, thereby making an unreasonably comparative indication and advertisement with respect to Article 10 and Article 3(1)(3) of the Act on Advertisement and Advertising.

B) As described in paragraph 2(a)(1), the Defendant made a false and exaggerated advertisement on ‘the possibility of saleroom occupants and rent rate', as described in paragraph 2(a)(1). (2) did not explain the existence, location, and size of the columns, fire hydrantss, and air conditioners, thereby violating the contractual obligations in the process of concluding the sales contract.In addition, the Defendant set up a fire hydrant on No. 128, thereby allowing the Plaintiff’s administrative agency, and the competent administrative agency to not use the commercial building in a legitimate way until the fire hydrant is transferred.

B. Determination on claims for damages based on the Indication and Advertisement Act

1) Determination as to the assertion of false or exaggerated advertisement

"False and exaggerated indication and advertisement" referred to in Article 3 (1) 1 of the Labeling and Advertising Act refers to any indication or advertisement which might deceive or mislead consumers by labeling or advertising any fact differently from the fact or excessively excessively, which might cause harm to fair trade order rates, and is likely to deceive or mislead consumers. The advertisement is likely to deceive or mislead consumers.

Whether or not a general consumer with common caution should be objectively determined on the basis of the overall and ultimate increase in the advertisement framework (see, e.g., Supreme Court Decisions 2009Da67979, 67986, Aug. 26, 2010; 2008Du6646, Nov. 13, 2008).

앞서 위 웜고둘의 주위적 청구 중 전북은행 입점 확정 및 기타 매장 입점 예정 과 임대수익률 보장과 관련한 계약해제 주장에 대한 판단 부분[제2의 가. 2) 가), 나)항]에서 살펴본 바를 종합하여 보면, 피고가 한 분양광고가사실과 다르다거나 사실을지나치게 부풀려 광고하여 소비자를 속이거나 소비사로 하여금 잘못 알게할 우려가있는 광고행위로서 공정한 거래질서를 저해할 우려가 있는 광고라고 단정하기 어렵고,그 밖에 위 원고들이 제출한 증거만으로는 이를 인정하기에 부족하며 달리 이를 인정할 증거가 없으므로, 위 원고들의 이 부분 주장은 받아들이지않는다.

2) Determination as to the assertion of unfair comparative advertising

Article 3(1)3 of the Labeling and Advertising Act prohibits any labeling, advertisement, or act that is likely to undermine fair trade order, which is an act of 'advertisement that is likely to deceive or mislead consumers.' According to Article 3(3) of the Enforcement Decree of the same Act, ‘unfairly comparative labeling or advertising' refers to labeling or advertising that does not specify the subject of comparison and standards, or indicating or advertising its own or its own goods, etc. as superior or favorable to the products, etc. of other enterprisers, etc. without any objective basis. Thus, when labeling or advertising that compare their goods with those of other enterprisers, if the comparison standards are not established properly and reasonably, such comparison standards are not determined, it constitutes an unfair labeling or advertising (see Supreme Court Decision 2002Da67062, Feb. 26, 2003).

Pursuant to the statement of No. 2, the Defendant’s trade price on the south side of the Do Office, the sales price around the site, and the K Company.

It is recognized that the sale price in lots, the seller in lots, and the seller in this case had made an advertisement comparing the sale price of the commercial building. However, the evidence submitted by the above plaintiffs alone cannot be readily concluded that the above advertisement by the defendant constitutes an unfair comparative advertisement that could undermine fair trade order by failing to establish appropriate and reasonable standards, and there is no other evidence to recognize the distribution price. Therefore, this part of the plaintiffs' assertion is rejected.

C. Judgment on the claim for damages arising from the tort under the Civil Act

1) Parts concerning the possibility of saleroom occupants and other salesroom occupants and the guarantee of rental rate

In full view of the above part of the plaintiffs' claim concerning the determination of salesroom occupants and the determination on the determination of other salesroom occupants' scheduled and return on rent among the primary claims (Article 2-A-2(a)(b)), it is difficult to conclude that this part of the contents of the defendant's advertisement contains exaggeration or falsity exceeding the extent that it can be justified in light of the general commercial practice and the good faith principle.Therefore, this part of the plaintiffs' claim is without merit.

2) part regarding the existence, etc. of columns (including the plaintiff investigation agency, excluding the plaintiff investigation agency).

A) Occurrence of liability for damages

The facts acknowledged in the part of the judgment of revocation on the ground of the existence of the columns, etc. (Article 2-A. 4) are as follows: ① Whether the columns and fire hydrants exists, location, size, and size of the columns and fire hydrantss may affect the sale price, and the sale price may have a significant impact on the choice of the type of business and the determination of rent in the case of directly doing business or leasing to several buyers, so the seller shall be deemed to have a duty to explain at his/her own expense; ② because the wall is the center of the columns, it is common to say that neighboring commercial buildings are equal to or irregular in the exclusive area of use by the columns by the columns; ③ Nevertheless, 128 commercial buildings sold by the above plaintiffs are two.

In addition to the fact that all the nests are flicking only the relevant commercial building, which is not a neighboring commercial building, and the construction of a fire hydrant No. 128, the above plaintiffs could not use the commercial building (from March 18, 2016 to February 27, 2017, the first notification date of occupancy). In addition, the period during which the above plaintiffs could not use the commercial building (from March 18, 2016 to February 27, 2017, the first notification date of occupancy) is about 11 months. It is reasonable to view that the defendant did not explain the fact that the plaintiff / the / the / the / the / the / the / the / the / the / the / the / the / the / the / the / the office

B) Scope of damages

The Defendant’s property damage caused by the above tort is reasonable to deem that the difference between the price for the actual use of a contract concluded by the above Plaintiffs and the price for the sale in lots that was formed if there was a clear explanation on the existence of a pillar, etc. to the buyer. However, it is difficult to prove to the buyer the price for the sale in lots that has been formed, because there was an accurate explanation on the existence, etc. of the pillar. Therefore, taking into account all the circumstances indicated in the instant argument, such as the location and size of each pillar, the ratio occupied in the exclusive use area, and the period during which the fire hydrants was installed, the amount of the property damage suffered by the above Plaintiffs shall be recognized as

(iii) small tons;

Therefore, the defendant is obligated to pay damages for delay calculated at each rate of 25,015,00 won to the plaintiff / 100 (250,150,000 won X 10%) and 5% per annum under the Civil Act until February 2, 2018, which is the date of the conclusion of the contract for sale, which is recognized as reasonable to dispute over the existence and scope of the defendant's non-performance as illegal act from April 9, 2015 to February 2, 2018, and 15% per annum as stipulated under the Act on Special Cases concerning the Promotion of Legal Proceedings, etc. from the next day to the date of full payment.

4. Judgment on the defendant's counterclaim

A. Facts of recognition

The following facts are acknowledged according to Gap evidence 1-1, Eul evidence 7-1 to 4, and evidence 8-1, the whole pleadings, and whether the whole pleadings are taken.

1) On April 8, 2015, when the Defendant, at the time of the sale of KRW 468,50,000, the Plaintiff / Plaintiff 1 (hereinafter “Plaintiff / Plaintiff 1”) agreed to pay KRW 187,400,00, the late payment damages for delay with the Defendant were to be determined as follows.

More than 1.44% more than 11.44% more than 180 days more than 30 days more than 10.44% more than 180 days less than 12.44% more than 180 days;

2) On March 18, 2016, the Defendant completed the said commercial building, and sent the occupancy salary report to the relevant administrative agency on March 18, 2016, and notified the occupancy again on April 12, 2016.

3) Meanwhile, the Defendant delayed the payment of the remainder by not later than October 31, 2016.

B. Determination on the petition’s advice

According to the facts found above, the Plaintiff 4% per annum that the sales contract was concluded between November 1, 2016 and November 30, 2016, which is the day following the due date for the payment of the remainder of KRW 187,400,000, and the due date for the payment of the remainder extended therefor, and 9.44% per annum from December 1, 2016 to January 29, 2017; 10.44% per annum from December 1, 2016 to January 29, 2017; and 11.4% per annum from January 30, 2017 to April 29, 2017; and 11.4% per annum from April 30, 2017 to June 5, 2017, which is the date of service of a copy of the counterclaim of this case.

부터 갚는 날까지는 소송촉진 등에 뫈한 특례법이 정한 연 15%의 각 비율로 계산한 지연손해금을지급할 의무가 있다.

C. Determination on Plaintiff 1’s defense

Although the above plaintiff defenses that the contract for sale in lots was cancelled or cancelled, it cannot be accepted, the above defense is rejected.

5. Conclusion

Then, each of the preliminary claims of the plaintiff 1, 4, 4, 4, 4, 4, 4, 4, 4, 4, 5, 4, 5, 1, 1, 1, 1, 5, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1,

Judges

Judge Dominsan Industrial Complex

Judges Kim Jin-sung

Judges Eslovaia

Note tin

1) If one of the parties mentioned in Article 544 (Performance Delay and Rescission) fails to perform his obligation, the other party may rescind the contract by giving a peremptory notice on the rate of performance fixed for a reasonable period and if the obligor has expressed in advance his intention of non-performance within such period: Provided, That peremptory notice is not required if the obligor has expressed in advance

2) The obligee may rescind the contract in the year in which performance has become impossible for any cause attributable to the obligor under Article 546 (Rescission of Impossibility of Performance).

3) Article 749(2) of the Civil Act provides that “When a bona fide beneficiary has lost, the beneficiary shall be deemed a malicious beneficiary from the time of filing the lawsuit.” In this case, the beneficiary shall prove that he/she is malicious, and “when a lawsuit is filed” means when the lawsuit is pending, that is, when a copy of the complaint has been served (see Supreme Court Decision 2013Da1891, Feb. 13, 2014).

심급 사건

전주지방법원 2018.2.2.선고 2016가합2955 제2민사부

-광주고등법원 전주재판부 2018.11.8.선고 2018나10413

참조조문