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(영문) 부산지방법원 2015.04.15 2013가합16087
계약금반환 등
Text

1. Defendant B received KRW 875,000,000 from the Plaintiff, and at the same time, received real estate indicated in the attached Table.

Reasons

1. Basic facts

A. On August 25, 2013, with regard to the real estate listed in the separate sheet owned by Defendant B (hereinafter “instant real estate”), the Plaintiff concluded a sales contract with the representative of the Defendant D Co., Ltd. under the terms and conditions that “the amount of KRW 975 million out of the contract deposit is KRW 20 million (the amount of KRW 20 million out of the contract deposit)” (the amount of KRW 80 million out of the contract deposit and the intermediate payment is KRW 20 million on August 26, 2013; the intermediate payment is KRW 200 million on August 30, 2013; the remainder amount of KRW 675 million and September 3, 2013; and if there is a reason for restricting the exercise of ownership, such as mortgage created on the instant real estate, etc., it shall be removed and transferred to the Plaintiff in full until the balance is received; however, the same shall not apply to the rights and amount agreed to succeed to ownership” (hereinafter “instant sales contract”).

B. On August 25, 2013, the Plaintiff paid the first down payment of KRW 20 million to Defendant B, and the second down payment of KRW 80 million to Defendant B on August 26, 2013, respectively. On August 25, 2013, the Plaintiff paid KRW 9,652,500 to Defendant C Co., Ltd. as a brokerage commission.

C. On June 12, 2009, Busan District Court Decision 32384, which received on June 12, 2009, the registration of ownership transfer under the name of Defendant B was completed on the ground of sale on May 25, 2009, and the registration of ownership transfer under the name of Busan District Court’s Northern District Court’s receipt of No. 72342, Nov. 21, 2012, the maximum debt amount of KRW 420 million was completed, respectively.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 4 (if there are additional numbers, including each number; hereinafter the same shall apply), the purport of whole pleadings

2. Judgment as to the main claim

A. The Plaintiff asserted for the cancellation of a sales contract under Article 570 of the Civil Code, which determines the claim against Defendant B, is a fraudulent act by the obligee of the actual owner, as Defendant B is not the actual owner of the instant real estate.

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