1. Of the judgment of the court of first instance, the part against the defendant exceeding the amount ordered to be paid below shall be revoked.

1. Basic facts

A. On February 29, 2012, the Plaintiff entered into a contract with the Defendant to pay the remainder of KRW 20 million by May 29, 2012 (hereinafter “instant contract”) for the goodwill of the “Dnoman Card” on the fourth floor of the building D (hereinafter “instant singing room”). However, the Plaintiff entered into a contract with the Defendant to pay the remainder of KRW 40 million by May 29, 2012 (hereinafter “instant contract”).

B. On February 29, 2012, the Plaintiff paid 40 million won to the Defendant the down payment based on the instant contract, and on March 1, 2012, the Plaintiff operated the instant singing room by accepting the instant singing from the Defendant, but did not pay the remainder of 20 million won until May 29, 2012, which is the date of the remainder payment.

C. After the date of the payment of the remainder, the Defendant confirmed that the Plaintiff failed to operate the instant singing room any more, and resumed its business in the instant singing room on June 2012.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1, testimony of Gap witness E at the trial, purport of whole pleadings

2. The party's assertion and judgment

A. The Plaintiff’s assertion 1) The summary of the Plaintiff’s assertion was cancelled by the Defendant’s resumption of business at the instant singing room on June 9, 2012, and thus, the instant contract was restored to its original state, the Defendant shall pay the Plaintiff a down payment of KRW 40 million and damages for delay. 2) The instant contract, the summary of the Defendant’s assertion, was rescinded by the Plaintiff’s nonperformance of the obligation to pay the remainder, and the down payment of KRW 40 million was penalty, so the Defendant did not have the obligation to pay the down payment to the Plaintiff.

B. Whether a down payment of KRW 40 million constitutes a penalty or not, the part of the evidence No. 1, the testimony by the witness E of the party concerned, the purport of the entire pleadings, and the following circumstances acknowledged therefrom, namely, the Defendant, who received only a part of the premium of KRW 60 million from the Plaintiff, to transfer the instant singing first to the Plaintiff, is liable to pay the remainder of the Plaintiff.