(영문) 대구지방법원 2016.01.15 2015가단25300

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(영문) 대구지방법원 2016.01.15 2015가단25300

계약금등상환

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1. The Defendant’s KRW 35,500,000 as well as the Plaintiff’s annual rate of 5% from July 1, 2015 to January 15, 2016, and the following.

Reasons

1. Determination as to the cause of claim

A. On July 1, 2010, the Plaintiff entered into a construction contract with the Defendant to contract the construction of studio building on the land of 325,000,000 won for the construction of studio building (the value-added tax is separate) (hereinafter “instant construction contract”) on the land of 218.7 square meters in the Gu, Si, Si, Si, Gu, and Gu (hereinafter “the instant construction contract”), and agreed to contract the said construction contract as the down payment of KRW 35,50,000, and paid the down payment at least eight times from July 1, 2010 to July 19, 2010 under the name of D as designated by the Defendant.

However, after receiving down payment, the Defendant did not start construction work on July 20, 2010, which is the date of commencement of construction work, which is the date of commencement of construction work.

After about 15 days, the defendant, who received the plaintiff's telephone, said that he could not work for the plaintiff, and this means that he expressed his intention to cancel the contract.

Accordingly, the defendant is obliged to pay the plaintiff the amount of KRW 71,00,000 (=35,500,000 x 2 times) and damages for delay, since the defendant cancelled the construction contract in this case by exercising the right of rescission reserved as down payment.

B. Determination 1) The Plaintiff asserts that the amount of the agreed down payment is KRW 35,500,000, which is the entire amount paid to the Defendant, but there is no evidence to acknowledge it. According to Article 565(1) of the Civil Act, the down payment means the money, etc. given at the time of the contract, and exceptionally, in the event that part of the down payment is paid at the time of the contract and the remainder is paid thereafter, the total amount can be deemed as the down payment only if it is clearly stated that the payment is the down payment between the parties. In the instant case, the phrase that the down payment is the down payment stating the content of the instant construction contract (only the total amount of the contract payment as stipulated in evidence 3, but not the amount of the down payment is written separately

참조조문

-민법 제565조 제1항

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