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1. The Defendant’s KRW 88,900,000 as well as 5% per annum from December 1, 2016 to June 20, 2017 to the Plaintiff.
Reasons
1. Determination as to the cause of claim
A. 1) On November 24, 2016, the Plaintiff: (a) determined the contract amount of KRW 210 million (excluding value-added tax) and the construction period from November 25, 2016 to February 15, 2017; and (b) determined D New Construction Contract (hereinafter “instant contract”).
(2) Upon C’s request on November 25, 2016, the Plaintiff transferred KRW 30 million out of the down payment to an enterprise bank account in the name of E (trade name: F and real business owner C and G). On December 1, 2016, the Plaintiff transferred KRW 58.9 million out of the remainder of the construction payment to the Defendant’s Nonghyup Bank account.
3) Meanwhile, after reviewing the instant contract, the Defendant: (a) caused H to perform the said construction work; (b) the Defendant paid the construction cost of KRW 58.9 million received from the Plaintiff to a third party, not the Plaintiff, at the Plaintiff’s request; (c) thereafter, C was locked while the construction work was not run properly; (d) the Plaintiff concluded a new construction contract again with G acting as another actual business owner of F around December 2017, as the Plaintiff’s another actual business owner.
【Ground for recognition” without a dispute, Gap evidence 1, Gap evidence 2-1, Gap evidence 2-2, Gap evidence 3-5, and 7, the purport of the whole pleadings
B. According to the above findings of determination, the instant contract concluded between the Plaintiff and the Defendant is deemed to have been implicitly rescinded on or before December 2017, which concluded a new construction contract with F, and thus, the Defendant is obligated to return the construction price received from the Plaintiff to the Plaintiff.
As to the amount of the construction cost to be returned to the Plaintiff by the Defendant, the health expenses, and C are entitled to receive the down payment, as a person delegated by the Defendant with all authority to conclude the construction contract.
Therefore, if the plaintiff transfers 30 million won out of the down payment to the F's account operated by C substantially at the request of C, the payment of down payment shall be effective for the defendant.