(영문) 대구고등법원 2018.11.16.선고 2018나20232 판결

1. Of the judgment of the first instance, the part against the defendant exceeding the cited portion of the plaintiff's claim is revoked, and the plaintiff's claim corresponding to the revoked portion is dismissed.

The defendant shall pay to the plaintiff the amount of KRW 200,00, KRW 150,00 among them, and KRW 150,000, and KRW 00 each year from January 23, 2017; KRW 50,00, and KRW 00 each year from July 5, 2017 to November 16, 2018; and KRW 15% each year from the next day to the date of full payment.

2. The defendant's remaining appeal is dismissed.

3. 30% of the total litigation costs shall be borne by the Plaintiff, and the remainder 70% shall be borne by the Defendant.

Purport of claim and appeal

1. Purport of claim

A. The primary purport of the claim

As to the Plaintiff KRW 300,00,000, and KRW 150,000 among them, and KRW 00,000 on January 23, 2017

ter 5% per annum and 15% per annum from the following day to the date of delivery of a copy of the complaint of this case

for 150,00,00 won, the service date of a copy of the complaint of this case shall be:

C. It shall pay 15% interest per annum from the date of full payment to the date of full payment.

B. Preliminary purport of claim

On January 23, 2017, the Defendant purchased and sold each real estate listed in the “Attachment List of Real Estate” to the Plaintiff.

Each of the above real estate shall be handed over after taking the procedure for the transfer of ownership for the reason.

2. Purport of appeal

The part against the defendant in the judgment of the first instance against the defendant shall be revoked, and the plaintiff's claim corresponding to the revocation

The dismissal is dismissed.

Reasons

1. Basic facts

A. C is the same as the husband of the Defendant at the same time. On December 2012, 2012, the Defendant purchased each land and building (hereinafter collectively referred to as "real estate of this case") indicated in attached Table 1, which was owned by D in the real estate auction procedure, and completed the registration of ownership transfer in the future of the Defendant.

At the time of January 23, 2017, the instant real estate had a non-registered building (g), (h), and (h) through (h), such as a building (hereinafter referred to as “the instant facility”). At the time of 2017, there were two or more buildings connected to (b), (h), and (d), and (c) c) c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c c cling

B. On January 23, 2017, the Plaintiff entered into a contract with the Defendant to purchase the instant real estate in KRW 1.06 billion (hereinafter “instant sales”). On the date of the contract, the Plaintiff paid KRW 150 million to the Defendant as the down payment. The main contents of the contract are as follows.

1. Indication of real estate sales contract: The real estate sales contract amount of KRW 1.66 billion: the contract amount of KRW 1.55 billion: the contract amount of KRW 910 million paid and received to the defendant at the same time: March 31, 2017; and the delivery of the real estate Article 3 of the receipt box shall be made March 31, 2017.The contract amount of KRW 6 shall be paid by the defendant as a penalty for breach of contract, and the contract amount shall be waived and the plaintiff shall not claim the return of the down payment at the time of the contract amount. 1. The defendant shall move the meri farm being used within 2 years from the completion date of the registration of transfer of ownership to the full transfer date, and the rent amount shall be paid at the time of non-performance by mutual agreement between the parties. The remaining payment date of the rent may be postponed by mutual agreement between D and D and D until the remainder date of the payment.

21. In light of the fact that the instant real estate was entirely taken out of the Republic of Korea.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, 3, 5, 8-1 through 4, Eul evidence 1, 2, Eul evidence 3-1 through 9, 4-1 through 4, 19, 20, 21-1, 2, and 24-2, testimony and video of the first instance court witness E, and the purport of the whole pleadings

2. Whether the sales contract of this case is terminated (affirmative)

A. Whether the entire purchase price of this case is subject to reporting (negative 1) party’s assertion

The Plaintiff’s assertion is that the subject matter of the instant transaction is the instant real estate, and that is a movable property, does not include the instant facilities. Therefore, the transaction price subject to reporting under Article 3 of the Act on Report of Real Estate Transactions, Etc. (hereinafter “Report of Real Estate Transactions Act”) is KRW 1 billion, which is the sales price of the instant case.

The Defendant’s assertion is that the subject matter of the instant transaction is the instant real estate and the instant facilities, and only the farm price out of the instant purchase price is subject to reporting under Article 3 of the Report on Real Estate Transactions Act.

2) Legal principles

According to the provisions of the Civil Act, land and its fixtures are real estate (Article 99(1)); movable property other than real property; (Article 99(2) of the Civil Act); and (3) if the owner of a thing has attached thereto another thing owned by him in order to permanently facilitate the use of such thing, the accessory shall be an accessory (Article 100(1)); and (4) the accessory shall be subject to the disposal of the principal thing (Article 100(2)).

Accessories shall belong to the owner of the same thing as the principal thing, shall be attached to the principal thing, shall be independent thing which shall contribute to the commercial use of the principal thing, and shall also contribute to the commercial use of the principal thing (see Supreme Court Decision 2003Da2905 delivered on April 9, 2004, etc.).

According to the Report on Real Estate Transactions Act, "real estate" is land or building (Article 2 subparagraph 1), "real estate, etc." is a right to acquire real estate or real estate (Article 2 subparagraph 2), "party to a transaction" is a buyer and seller, and "party to a transaction" is a buyer and seller, and the party to a transaction has entered into a contract of real estate sales, etc., the actual transaction price, etc. shall be reported jointly to the head of the Si/Gun/Gu having jurisdiction over the location of the real estate, etc. (in the case of a contract on rights, referring to the real estate that is the subject of such rights) within 60 days from the date the contract is entered into, and notwithstanding Article 3 (1) and paragraph (1) of the same Article, if one of the parties to a transaction refuses to report, it may be reported independently as prescribed by Ordinance of the Ministry of Land, Infrastructure and Transport (Article 3

The following facts are acknowledged according to the above facts of recognition, the above quoted evidence, the entry of Eul No. 25, and the results of the appraisal of the party appraiser F.

① At the time of the instant purchase and sale, there was a building on the part of the instant real estate, such as (A) through (h) as indicated in the “Formbook”, but among which (A), the part of the instant building was not recorded in the real estate registration book, and (5) the part of the building (A) other than (5) and (f) the building (a) and (f) other than the part of the building (a).

1. On May 8, 2015, the instant real estate and its accessory facilities (class 6, such as feed combined equipment, merculation equipment, and air conditioners), the Defendant created a factory collateral mortgage of KRW 720 million with respect to the instant real estate and its accessory facilities (class 7,00,000 won with maximum debt amount, the debtor, the debtor, and the mortgagee of the instant plant collateral security. The details of the appraisal of machinery, tools, and equipment of the instant factory collateral security are indicated as approximately KRW 90,000,000 with respect to the appraisal of the said accessory facilities.

③ In the instant sales contract, the Defendant stated that “the main farm in use shall be entirely transferred within two years from the completion date of the registration of ownership transfer.” However, the appraisal opinion by the appraiser F is that the market price of the instant real estate at the time of the instant sales contract ( January 23, 2017) is KRW 726,70,701,820 ( = 298,364,000 + building KRW 428,337,820 + building KRW 428,337,820). The market price of the instant facilities is KRW 250,713,00 in total, KRW 977,414,820, and the aggregate amount is below KRW 1 billion in the instant sales contract.

4) Whether the instant facilities are subject to sale (affirmative)

Recognizing that the facility of this case is the object of the trade of this case, it is recognized by the fact of the above recognition.

Under the following circumstances, factory mortgage was established prior to the sale and purchase of the instant real estate and its accessory facilities. At the time of the sale and purchase of the instant real estate, the market price of the instant real estate = approximately 35% [(250, 713, 000 won 726, 701, 820 won)] x 100]. The building in the instant real estate is used for the purpose of chilling or mercation, feed manufacturing, etc. In full view of the fact that the instant real estate and its accessory facilities were installed for the purpose of using the instant real estate or mercation breeding building, it is reasonable to view that the instant real estate and its accessory facilities fall under the ancillary property of this case, and that the instant real estate sales and purchase contract of this case should be entirely transferred to the Plaintiff and the Defendant, who is the object of the instant real estate sales and purchase contract of this case, within 20 billion won, and that the instant real estate price of the instant real estate is 70 billion won or more at the market price of this case.

As seen earlier, the subject matter of the instant transaction is the instant real estate and the instant facilities, not the instant real estate, and since the instant facilities are movable property, it shall not be subject to reporting under Article 3 of the Report on Real Estate Transactions Act. As such, in reporting transaction prices pursuant to the Act on Report on Real Estate Transactions, the Plaintiff and the Defendant are obligated to report only the price of the instant real estate, i.e.,

C. Whether the defendant's refusal of performance (affirmative) 1 is asserted by the party

The Plaintiff did not agree with the Defendant at the time of the instant sales contract. Around May 31, 2017, the Defendant’s agent, refused to implement the contract on the grounds that the Plaintiff did not prepare a sales contract for reporting the cause of KRW 500 million. Therefore, the instant sales contract was lawful by the Plaintiff’s notice of cancellation on June 23, 2017, on the grounds of the Defendant’s refusal to implement the contract.

B) Defendant:

Although the Plaintiff agreed to report the purchase price in KRW 500 million with the Defendant at the time of the instant sales contract, the Plaintiff failed to perform its duty to prepare a sales contract for reporting the cause of KRW 500 million, and did not pay any balance. Therefore, the instant sales contract was rescinded by the delivery of the reply as of July 30, 2017 on the ground of nonperformance, such as the Plaintiff’s delay of performance, etc.

In general, when one party in a bilateral contract expresses his/her intention not to perform his/her own obligation in advance, the other party may rescind the contract without demanding performance or providing for the performance of his/her own obligation. Whether such intent is expressed shall be determined by comprehensively examining the other party’s behavior and specific circumstances before and after the contract. Even in cases where one party provides performance, it is objectively apparent that the other party does not perform his/her obligation even if it is performed, or where it is objectively evident that it is impossible for the other party to perform his/her obligation within a reasonable period of time, the other party may rescind the contract on grounds of the other party’s delay of performance even if it is not provided. In such cases, whether it is obvious that the other party is unable to perform his/her obligation even if one party provides performance, shall be determined at the time of termination (see Supreme Court Decision 2005Da11381, Nov. 30, 2007,

If the purchase price of land, buildings, facilities, etc. is determined collectively, if it is not known that the price of the land, buildings, facilities, etc. is determined by adding up each time price of the land, buildings, facilities, etc., but if not, the method of calculating the price of the land during the purchase price is determined by individually assessing the market price of each land, buildings, and facilities, and then identifying the ratio thereof, and calculating the price of the land out of the purchase price according to such ratio (see Supreme Court Decision 84Meu2344, Nov. 12, 195, etc.)

According to the Report on Real Estate Transactions Act, where a transaction party has entered into a contract for real estate sales, the transaction party shall jointly report the actual transaction price, etc. to the head of the Si/Gun/Gu having jurisdiction over the location of the real estate (in the case of a contract for rights, referring to the real estate subject to such rights) which is the subject of such rights within 60 days from the date of conclusion of the transaction contract, and notwithstanding Article 3(1) and (1), where one of the transaction parties refuses to report it, it may report it independently

3) Facts of recognition

According to each of the above facts of recognition, the above quoted evidence, Gap evidence No. 4, Eul evidence No. 23-1, 2, 3, and 26-2, the following facts are recognized:

① At the time of the instant sales contract, the Defendant demanded the Plaintiff to report the sales price as KRW 500 million, but only expressed that the Plaintiff would report the amount less than the instant sales price, without having consented thereto.

② Around May 25, 2017, the Plaintiff proposed to C, an agent of the Defendant, to be the Defendant’s agent via E (hereinafter “instant sales”), was to report the full amount of the purchase price or to report KRW 800,000,000,000 from KRW 20,000 to KRW 30,000,000, or KRW 1,066,000,000,00,000. The details proposed to C, an agent of the Defendant, at that time, were to report the amount of KRW 50,00,000,000, out of KRW 1,06,000,000,000.

On May 31, 2017, C, an agent of the Defendant, failed to reach an agreement on the purchase price reported between the Plaintiff and the Plaintiff, and said C, “the Plaintiff received the down payment and did not have the instant sales contract.”

③ The purport of the content certification sent by the Plaintiff to the Defendant on June 23, 2017 is to cancel the instant sales contract on the grounds of the Defendant’s nonperformance, and the Defendant is obligated to pay the Plaintiff KRW 300 million ( = KRW 150 million of down payment + KRW 1550 million of down payment + KRW 150 million of penalty).

The purport of the Defendant’s written reply of July 30, 2017, which was submitted to the first instance court, is that the Defendant rescinds the instant sales contract on the grounds of the Plaintiff’s delay of the payment obligation. ④ The Defendant changed the present state of the subject matter of the instant sales, such as partial removal of a building, and construction of a part of a building after the instant sales contract, such as the indication (a) through (h) of the drawings (a) after the instant sales contract, and the construction of a new building. As a result, as of August 24, 2018, the size, location, etc. of some buildings was changed and two buildings were newly constructed.

Judgment on the Details of Change of Building 4)

The following circumstances acknowledged by the above facts are: (a) there was no agreement between the Plaintiff and the Defendant to report KRW 500 million out of the purchase price of the instant real estate at the time of the instant sales contract; (b) if the Defendant or the Plaintiff refuses to jointly report the transaction price of the instant real estate, the Plaintiff alone may report the transaction price of the instant real estate; and (c) even if the Defendant voluntarily reported the amount deemed reasonable by himself, the report is not null and void; (d) the Defendant returned the down payment to the Plaintiff on the ground that there was no agreement between the Plaintiff on the transaction price of the instant real estate without independently reporting the transaction price of the instant real estate; and (d) the Defendant removed part of the instant real estate after the instant sales contract, and thus, the Defendant refused to implement the instant sales contract without justifiable grounds.

Therefore, the instant sales contract is deemed to have been lawfully rescinded by the notification of cancellation on June 23, 2017, which was made by the Plaintiff on the ground of the Defendant’s refusal of performance. Since the cancellation by the Defendant’s reply issued on July 30, 2017, which was made after the termination of the contract, is deemed to be unlawful, the Plaintiff’s assertion of cancellation is reasonable, and the Defendant’s assertion of cancellation is without merit.

3. Judgment on the main claim

(a) Part of the claim for reinstatement (citement);

As seen earlier, the Plaintiff paid the Defendant the down payment of KRW 150 million in the instant sales contract to the Defendant, and on June 23, 2017, the instant contract was lawfully rescinded. As such, the Defendant is obligated to pay the Plaintiff the down payment of KRW 150 million and the damages for delay due to the cancellation of the contract, barring special circumstances.

B. Part of claim for penalty ( partial citement of Claim)

The plaintiff's assertion was cancelled due to the reason attributable to the defendant, so the defendant is obligated to pay the plaintiff the amount of KRW 150 million, which is equivalent to the down payment, as damages, in accordance with Article 6 of the contract of this case.

According to the contract of this case, if the contract is terminated, the defendant is obligated to compensate for the double amount of the down payment as a penalty (Article 6), and it is reasonable to view it as an estimate of damages under Article 398(4) of the Civil Act.

According to Article 398 (2) of the Civil Code, "in cases where the estimated amount of compensation for damage is unreasonably excessive, the court may reduce it to a reasonable level." In this context, "in cases where the amount of compensation for damage is unreasonably excessive" means cases where the payment of the estimated amount of compensation for damage is deemed to result in the loss of fairness by giving unreasonable pressure to the debtor who is in the position of the economically weak in light of the general social concept, taking into account all the circumstances such as the status of the creditor and the debtor, the purpose and content of the contract, the motive behind the liquidated amount of compensation, the ratio of estimated amount of compensation for damage to the amount of debt, the estimated amount of expected damage, the size of expected damage amount, and the transaction practices at the time, etc. In addition, in determining whether the estimated amount of compensation for damage is unreasonably excessive or the scope of reasonable reduction is to be determined specifically, the court shall take into account all the above circumstances that occurred between them as of the time of the closing of argument at the fact-finding court (see Supreme Court Decision 204.

10. See, e.g., Supreme Court Decision 2002Da73852, supra)

The above facts and the following circumstances are acknowledged by the above quoted evidence: ① Penalty under the sales contract of this case: ① approximately 14% of the sales price of this case = 14% [1,00,000 won: 1,060,000 won]; ② The defendant jointly prepares the sales contract of this case with the plaintiff; ② The plaintiff and the defendant jointly bear the responsibility for the result of unclear points in the sales contract of this case. The sales contract of this case did not contain any indication as to how much the transaction price of the real estate of this case was reported; ③ the plaintiff and the defendant were unable to report the transaction price of the real estate of this case solely by the defendant; ③ the plaintiff and the defendant neglected to make their efforts although they could agree to jointly report the transaction price of the real estate of this case through appraisal and assessment of real estate after the sales contract of this case; ④ The date of the conclusion of the sales contract of this case (2017.

1. In full view of the fact that around June 23, 2017, which was about five (5) months from the 23th day of the 2017, the Plaintiff was released on the grounds of non-performance, and the Plaintiff did not perform its obligation to pay the remainder before the contract, it is reasonable to unfairly excessive and reduce the amount of KRW 150 million to KRW 50 million, and thus, the Defendant is obligated to pay the Plaintiff the damages amounting to KRW 50 million and the damages for delay. Thus, the Plaintiff’s assertion is with merit within the scope of recognition, and the remainder is without merit.

C. Sub-committee

Therefore, with respect to the Plaintiff KRW 200 million ( = KRW 150 million as down payment + KRW 50 million as damages) and KRW 150 million as of the intermediate payment, the payment date, from January 23, 2017, and with respect to KRW 50 million as of KRW 50 million as of July 5, 2017, the day following the delivery date of a copy of the complaint of this case, it is reasonable to dispute the existence or scope of each Defendant’s obligation from July 5, 2017, as of whether or not each Defendant’s obligation exists or not.

16. By the end, there is a duty to pay legal interest or delay damages calculated at the rate of 5% per annum under the Civil Act, 15% per annum from the next day to the day of full payment.

4. Preliminary claim portion

If the plaintiff's assertion is acknowledged that the sales contract of this case was not terminated, the defendant is obligated to implement the registration procedure for transfer of ownership based on the sales contract of this case and deliver the real estate of this case to the plaintiff.

As seen earlier, it is recognized that the instant sales contract was lawfully rescinded on June 23, 2017, and thus, the conjunctive claim is not determined separately.

5. Conclusion

The plaintiff's primary claim shall be accepted within the scope of the above recognition, and the remainder shall be dismissed as it is without merit. Since the judgment of the court of first instance is unfair with a different conclusion, part of the defendant's appeal shall be accepted, and the part against the defendant exceeding the above cited part in the judgment of first instance shall be revoked, and the plaintiff's claim corresponding to the above revoked part shall be dismissed, and the remaining appeal of the plaintiff shall be dismissed as it is without merit.