(영문) 서울중앙지방법원 2017.9.7. 선고 2017나16876 판결

The defendant shall pay to the plaintiff 3,40,000 won with 5% interest per annum from October 28, 2016 to September 7, 2017, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. 30% of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

4. The part concerning the payment of money under paragraph (1) may be provisionally executed.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay to the plaintiff 17,00,000 won with 15% interest per annum from the day following the service of the original copy of the payment order of this case to the day of full payment.

2. Purport of appeal

Of the judgment of the first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 11,90,000 won with 15% interest per annum from the day following the service of the original copy of the payment order of this case to the day of complete payment.

Reasons

1. Whether the contract of this case was cancelled

The reasoning for this part of the court's explanation is as stated in Paragraph 1 of Article 420 of the Civil Procedure Act, except that the "record No. 5 of the judgment of the court of first instance" and "the purport of the whole pleadings" are "the purport of the statement and the whole pleadings of evidence No. 1 to No. 4 of the judgment of the court of first instance". Thus, this part of the reasoning of the judgment of the court

2. Determination on the scope of damages

Since the defendant is liable to pay the plaintiff the damages due to the rescission of the contract of this case, it can be acknowledged by the evidence that the seller has agreed that "the buyer shall reimburse the seller the amount of the down payment before the buyer pays the intermediate payment to the seller, and the buyer may waive the down payment and cancel the contract of this case." This is presumed to be the liquidated damages pursuant to Article 398 (4) of the Civil Act with the agreement of penalty.

On the other hand, if the estimated amount of damages is unfairly excessive, the court may reduce it to a reasonable extent (Article 398(2) of the Civil Act); in light of the purpose and content of the contract of this case, the circumstances leading up to the Defendant’s nonperformance as indicated in this case, and the Plaintiff’s damages anticipated to be actually incurred therefrom, etc., the amount of damages the Defendant is 8,50,000 won (=the down payment of KRW 17,00,000 x 50%).

Therefore, the Defendant is the Plaintiff’s KRW 8,500,000 and the part cited by the first instance judgment.

With respect to KRW 5,100,000, the Defendant is obligated to pay 5% per annum from October 28, 2016 to February 8, 2017, which is the day following the delivery date of the original copy of the instant payment order, and 15% per annum from the next day to the day of full payment under the Civil Act, and to pay damages for delay calculated at the rate of 15% per annum from the next day to the day of full payment; with respect to KRW 3,400,000, which is the part ordering additional payment in this court; and with respect to KRW 3,40,000, which is the part ordering additional payment in this court, from October 28, 2016 to September 7, 2017, which is the day of the original sentence of this Court; and damages for delay calculated annually by 15% from the next day to the day of full payment.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the above scope of recognition and the remaining claims shall be dismissed as without merit. Since part of the judgment of the court of first instance differs from this, it is unfair to accept part of the plaintiff's appeal and revoke it and order the payment of money additionally recognized by this court against the defendant. Since the remaining part of the judgment of the court of first instance is legitimate, the plaintiff's remaining appeal is dismissed. It is so decided as per Disposition.