(영문) 서울서부지방법원 2015.04.30 2014가단29479

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(영문) 서울서부지방법원 2015.04.30 2014가단29479

위약금등

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1. The plaintiff's primary claim and conjunctive claim are dismissed, respectively.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On December 31, 2013, the Plaintiff purchased 5951/100 of the Defendant’s share in the amount of KRW 90,000,000,000 among the 10896 square meters of land in Gangwon-do, Jung-do, the Defendant representing the Defendant (hereinafter “instant contract”), and paid KRW 20,000,000 as part of the down payment around that time, and paid KRW 25,00,000 of the claim held by the Plaintiff to C in lieu of paying the remainder of the down payment.

B. Article 7 of the sales contract of this case states that “A lessee (referring to a seller) compensates for a double of the down payment at the time of the termination of the contract, and a lessee (referring to a buyer) cannot claim the return of the down payment after the termination of the contract.”

C. On May 19, 2014, C sent a written notice to the effect that the instant contract will be rescinded if the remainder is not paid to the Plaintiff by May 31, 2014. The said written notice reached the Plaintiff around that time.

[Ground of recognition] Unsatisfy, Gap evidence 1 to 4

2. The plaintiff's assertion and judgment

A. The Plaintiff primarily agreed to pay the balance under the instant contract at the time of the completion of the litigation procedure conducted by the Plaintiff, and the Defendant unilaterally refused the performance of the instant contract while unilaterally rescinding the instant contract. As such, the Plaintiff asserts that the Defendant should compensate for damages of KRW 90,000,000, a double payment of the down payment, in accordance with Article 7 of the instant sales contract, as a penalty. However, there is no evidence to acknowledge that the Plaintiff agreed to pay the balance at the time of the completion of the litigation procedure conducted by the Plaintiff, and there is no reason to view the remainder.

B. The plaintiff, as preliminary, expressed his intention to cancel the contract of this case by sending a written notification that the defendant will cancel the contract of this case. Since the plaintiff also consented thereto, the contract of this case was cancelled by agreement, it is restored to its original state, and the defendant's restoration to its original state of KRW 45,00,000.

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