(영문) 서울고등법원 2017.11.17 2017나2021792

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(영문) 서울고등법원 2017.11.17 2017나2021792

토지인도

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1. The judgment of the first instance court between the plaintiff succeeding intervenor and the defendant is modified as follows. A.

The defendant is the plaintiff.

Reasons

1. The reasoning for this part of the lower court’s reasoning is as follows: (a) the expression “Defendant Business World Co., Ltd. 3-4 (hereinafter “Defendant Business World”) and the expression “Defendant Business World” and “Defendants” in the corresponding part of the facts at the second bottom of the judgment, other than using them collectively, are the same as the corresponding part of the judgment of the first instance, and thus, they are cited pursuant to the main sentence of Article 420 of the Civil Procedure Act.

2. Determination on the defense prior to the merits

A. The defendant who violated the non-instigation special clause of the lawsuit in this case argues that the non-instigation special clause of the lawsuit in this case shall be applied not only to the defendant but also to the plaintiff who is the other party. Thus, the lawsuit in this case shall be dismissed in an unlawful lawsuit against the non-instigation special clause

As seen earlier, the agreement of this case contains the purport that "if the defendant fails to perform his/her obligation under the contract, the contract of this case is rescinded, the defendant shall immediately withdraw the contract of this case from the real estate of this case, and shall not claim any right, such as lien, against the part of the construction work, and shall not claim any right, such as a lien, in any lawsuit or in any lawsuit. The estimated amount of compensation for damages of KRW 200 million in the contract of this case shall be KRW 72,00,000,000 of the purchase price, and the defendant shall confiscate the purchase price paid by the defendant until the above amount reaches the above amount, and the defendant shall not file any civil or criminal objection (it is clear that the agreement to file a lawsuit is the agreement to file a lawsuit)". This means that if the defendant breached his/her duty under the contract of this case, the defendant shall not claim the right to retention and the estimated amount of compensation, and it shall not be asserted inside and outside the lawsuit, and therefore, the plaintiff shall not be subject to the application of the special agreement of this case for removal of the ownership and delivery of the real property.

The defendant's defense is justified.

참조조문

-민사소송법 제420조

유사 판례

-대전지방법원 2016.06.08 2015가합102310

-대법원 1991. 12. 13. 선고 91다30057 판결

-대법원 2018. 1. 24. 선고 2016다234043 판결

-광주지방법원 순천지원 2018.03.13 2016가단14595

-광주지방법원 2019.10.04 2019가합54219