(영문) 의정부지방법원 2016.04.28 2015가단111303

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(영문) 의정부지방법원 2016.04.28 2015가단111303

매매대금반환

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1. The plaintiff's claim is dismissed.

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

Reasons

1. Facts without dispute;

A. On April 13, 2015, the Plaintiff entered into a sales contract with the Defendant on the purchase price of KRW 735,000,000 (in total, KRW 73,500,000, the remainder of KRW 661,500,000, and June 10, 2015) of the C building 701, 702, and 703 (hereinafter collectively referred to as “instant real estate”), which was owned by the Defendant, and paid KRW 73,50,000 (hereinafter “instant sales contract”).

B. On May 11, 2015, the registration of provisional attachment was completed as of May 11, 2015, the claimed amount of KRW 900,000,000 for the instant real estate, and as the creditor

2. The parties' assertion and judgment

A. The Plaintiff’s assertion that the sales contract of this case was cancelled on the ground of the Defendant’s nonperformance since the Defendant did not cancel the registration of provisional seizure, and thus, pursuant to Article 7 of the sales contract of this case, the Defendant is liable to return the down payment amount of KRW 73,500,000, which was paid to the Plaintiff

B. The Defendant’s expression of intent to cancel the contract for the Plaintiff’s assertion is invalid as it did not make a written statement as stipulated in Article 7 of the sales contract of this case in the state that the Plaintiff did not pay any balance.

C. Article 7 of the instant sales contract (No. 1) provides that “If a seller or purchaser fails to perform any of the terms and conditions of this contract, the other party may give written notice to the person who failed to perform the contract and rescind the contract.”

Since June 10, 2015, the obligation of the plaintiff to pay the balance and the obligation of the defendant to cancel the registration of provisional attachment and transfer of ownership are in the simultaneous performance relationship.

Unless there are special circumstances, the plaintiff has provided the payment of the balance for the lawful rescission of the sales contract of this case, and has given written notice of performance for a reasonable period of time.

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