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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On October 30, 2013, the Plaintiff purchased the instant housing site and two-story housing (hereinafter “instant housing”) from the Defendant at KRW 400 million, the down payment amount of KRW 40 million, the intermediate payment of KRW 100 million (payment date January 10, 2014), and the remainder of KRW 260 million (hereinafter “instant sales contract”), and paid the Defendant the down payment of KRW 40 million to the Defendant on the same day.
B. In the instant housing, there is a defect in water in the interior of the second floor and the first floor due to the height of the rooftop floor and waterproof defects, and 4,531,700 won is required to carry out repair works, such as waterproof and flooding works.
[Ground of recognition] Facts without dispute, Gap 1's entry, appraiser D's appraisal result, the purport of the whole pleadings
2. The parties' assertion
A. Plaintiff 1) thought that the Plaintiff did not suffer from water leakage and purchased the instant housing. After concluding a contract, it appears that the Plaintiff could not live a normal residential life significantly due to water leakage. If the Plaintiff knew of this fact before concluding the contract, it would have not concluded the instant sales contract. Therefore, the instant sales contract was revoked due to mistake, and the Defendant shall return the down payment to the Plaintiff with unjust enrichment. 2) Since the instant housing, which is the subject matter of the sale, has such significant defects, the instant sales contract was revoked in accordance with Article 580 of the Civil Act, and the Defendant shall return the down payment KRW 40 million to the Plaintiff as restitution according to the termination of the contract.
3. Even if the instant sales contract was rescinded due to the Plaintiff’s fault, the said down payment is deemed to have the nature of liquidated damages. However, in light of the background leading up to the conclusion of the instant sales contract, the economic status of the original Defendant, the purpose and content of the contract, the size of damages, and the general process of transactions, etc., the amount is excessive.