2016Da210191 Return of down payment

A person shall be appointed.

A person shall be appointed.

Gwangju High Court ( Jeonju) Decision 2015Na100322 Decided January 28, 2016

June 23, 2016

The judgment below is reversed, and the case is remanded to the Gwangju High Court.

The grounds of appeal are examined.

1. As to the part on the claim for cancellation of contract

Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court is justifiable to have rejected the Defendant’s claim for rescission of contract on the grounds stated in its reasoning, and it is so decided as per Disposition by the assent of all participating Justices on the bench, misapprehending the legal principles

There is no illegality in law.

2. As to the claim for damages

A. The lower court: (a) concluded the instant sales contract with the Defendant to purchase the purchase price of KRW 40,200,00 for the instant apartment from the Defendant; (b) paid KRW 40,200,000 on the day of the contract; and (c) additionally paid KRW 7,00,000 upon the Defendant’s request on April 18, 201; (d) agreed in the instant sales contract that the Plaintiff would pay the purchase price for the instant apartment, but the Plaintiff did not pay the purchase price; (c) the Defendant received a loan from the Jeonbuk Bank on July 8, 2011 and paid the intermediate payment in full; and (d) thereafter, on September 27, 2013, the Defendant received a loan from the Seocheon Saemaul Bank from KRW 174,00,000,000 on the date of the instant contract; and (d) paid the instant apartment loan to the Plaintiff at the same time with the completion inspection on the completion of construction and the instant construction of KRW 3130,20, and the instant apartment loan.

11.5. The registration of initial ownership of the apartment in the name of the defendant was completed on the same day, and the registration of initial ownership was completed on the apartment in the name of Songcheon Saemaul Depository, the maximum debt amount of which was 208,80,000, and the registration of initial ownership was completed on the apartment in the instant case.

Furthermore, the lower court determined that the Plaintiff was liable to pay the Plaintiff KRW 174,00,00 as damages on the ground that the Defendant, a debtor of the instant loan, did not repay the instant loan in order to preserve the right to claim for ownership transfer registration of the instant apartment complex, and that the Plaintiff suffered damages equivalent to the secured debt amount of the instant right to collateral security, and that such Plaintiff’s damages were damages actually incurred by social norms. However, the lower court’s aforementioned determination is difficult to accept for the following reasons.

First of all, the defendant, who is a seller, bears the duty to complete the registration of ownership transfer by cancelling the registration of ownership transfer of the instant case, but it cannot be said that the defendant's obligation to complete the registration of ownership transfer was impossible on the ground that he did not cancel the registration of ownership creation of the instant case (see, e.g., Supreme Court Decision 2001Da39534, Apr. 12, 2002). In addition, the court below held that the plaintiff's obligation to pay the purchase price of the instant case and

The Defendant’s duty to cancel the registration of the establishment of a mortgage of this case also has the relation of simultaneous implementation in relation to the Plaintiff’s obligation to pay the purchase price of this case and the obligation to pay the purchase price of this case. Thus, insofar as the Plaintiff performed the obligation to pay the purchase price of this case or did not provide it, the Defendant is not liable for nonperformance due to the duty to cancel the registration of the establishment of a mortgage of this case (see, e.g., Supreme Court Decision 2004Da49525, Dec. 9, 2004). In addition, there is no other circumstance to acknowledge Defendant’s tort liability without any particular reason, the lower court recognized Defendant’s liability for damages. In so doing, the lower court erred by misapprehending the legal doctrine on

3. Conclusion

The lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee In-bok

Justices Kim Yong-deok

Justices Kim So-young

Justices Lee Dong-won