1. The part against the defendant among the judgment of the court of first instance is revoked, and the plaintiff's claim as to that part is dismissed.

2...

1. The court's explanation on this part of the basic facts is the same as the reasoning of the judgment of the court of first instance, and thus, citing it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Determination as to the cause of action

A. Article 2(2) of the grounds for the court’s explanation on this part of the rescission of the instant sales contract

A. 1) Since it is the same as the statement, it shall be quoted as it is in accordance with the main text of Article 420 of the Civil Procedure Act. B. The Defendant’s obligation to pay a penalty for breach of contract (1) where the down payment is received in the conclusion of a contract for consideration, the down payment has the nature of the down payment, and the contract was rescinded due to reasons attributable to either

Even if the other party can only receive compensation for actual damages incurred in nonperformance of the contract, not a down payment naturally reverted to the other party as a penalty.

(See Supreme Court Decision 95Da54693 delivered on June 14, 1996, etc.). According to the evidence No. 1 of this case, Article 5 of the sales contract of this case provides that “The seller may repay the sum of the down payment to the seller before the buyer pays the intermediate payment (if there is no intermediate payment, before the buyer pays the intermediate payment), and the buyer may waive the down payment and rescind this contract.”

However, there is no provision on the same purport as Article 565(1) of the Civil Code on the cancellation money, and there is no provision on the penalty in the sales contract of this case.

2. The plaintiff asserts that there was an implied agreement between the defendant and the defendant that the above cancellation fee provision includes the agreement of penalty, and the defendant did not have such agreement.

According to the facts without dispute, the whole purport of the pleading, and ① Defendant’s legal representative asserted in the reply that “this case’s sales contract was rescinded, so there is no room to apply the penalty provision.”