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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On January 22, 2016, the Plaintiff concluded a sales contract with D Co., Ltd. (hereinafter “sub-company”) and an officetel newly built in Daegu-gu E and F (hereinafter “instant building”) with regard to the sales price (including value-added tax) at KRW 200,322,00 for the 12nd floor G of the instant building.
B. The Defendant concluded a trust contract and a substitute contract with the non-party company, which is established for the purpose of trust of land and its fixtures and related affairs, to act on behalf of the non-party company and the sales partner, and to receive and manage the sales price to be paid to the non-party company in lieu of the plaintiff company.
C. The Plaintiff paid the down payment of KRW 20,032,200 to the non-party company. The intermediate payment of KRW 140,225,400 to the non-party company was loaned from the financial institution arranged by the non-party company and paid the Defendant or the non-party company. On March 11, 2019, the Plaintiff paid KRW 38,948,40 to the Defendant or the non-party company for advance payment at the discount of the balance.
The Plaintiff and the Nonparty Company agreed that the Plaintiff shall pay to the Plaintiff 10% of the total purchase price as penalty, if the occupancy was delayed for more than three months from the initial scheduled date of occupancy due to a cause attributable to the Nonparty Company.
(Article 7(3) and (4) of the instant sales contract. (e)
The scheduled date of occupancy under the instant sales contract was around December 2018, but the instant building was not completed until three months thereafter, and the Plaintiff and the Nonparty Company cancelled the instant sales contract on May 21, 2019 and paid to the Plaintiff the refund amount of KRW 59,643,600 (prepaid payment, advance payment discount, and penalty) of KRW 59,643,60 to the Plaintiff by August 31, 2019, and the intermediate payment that the Plaintiff received from a financial institution and paid to the Defendant by the financial institution was resolved until September 30, 2019.