2014dan3612 Return of down payment

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Law Firm Geumyang et al., Counsel for defendant-appellant

Attorney Kim Jong-tae, Counsel for the plaintiff-appellant

1. Ratification00

2. The competent Do governor.

[Judgment of the court below]

June 3, 2015

July 8, 2015

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit are assessed against the Plaintiff.

The defendants jointly and severally pay to the plaintiff 10 million won with 20% interest per annum from the day after the delivery of a copy of the complaint to the day of complete payment.

1. Basic facts

A. On June 2013, the Plaintiff purchased between the Defendants and the Defendants a sales contract of KRW 850,000,000,000 per Jeonju-si, which is a joint ownership of the Defendants, for KRW 000,000 to KRW 69,000 (hereinafter “instant sales contract”).

2) The Korea Development Bank entered into an agreement.

B. The Plaintiff prepared a contract in which the purchase price is KRW 650 million on the 21st of the same month, and paid KRW 50 million to the Defendants. The remainder KRW 800 million is agreed to pay the purchase price up to August 21, 2013, and the Plaintiff prepared a cash storage certificate for KRW 200 million on the actual purchase price and the purchase price in the letter of contract in excess of the amount (hereinafter referred to as “multi-sale”) and delivered it to the Defendant Seo-gu Seoul Special Metropolitan City.

C. On August 7, 2013, prior to the date of the remainder payment, the Plaintiff demanded Defendant 00 to re-form a pre-sale agreement according to the actual transaction price. However, the Defendants requested the increase in the purchase price and did not enter into a new agreement between the Plaintiff and the Defendant on the ground that the purchase price was set at an amount of KRW 500,000 per annum on the grounds that the purchase price was set at low in an amount of KRW 500,000 per annum on the basis of

D. While the payment of the remainder and the transfer of ownership are not made until the expiration of the payment date of the instant purchase price, the Plaintiff would transfer the remainder to Defendant 00 on September 26, 2013, “On October 7, 2013, this Agreement will become null and void,” and “The text message will be sent.”

E. In order to pay the remainder on October 7, 2013, the Plaintiff and the Defendants met at the location of Jin-dong branch of the Jeonbuk Bank. However, the Plaintiff demanded the re-preparation of the sales contract as actual transaction. Accordingly, the Defendants demanded the Plaintiff to bear capital gains tax of KRW 60,000 for the amount collected, and eventually, the agreement was reached. The Plaintiff returned to the Plaintiff without paying the remainder.

F. Since then, on October 15, 2013, the Plaintiff refused performance on the grounds that the Defendants were to refuse performance on the 24th of the same month.

Along with the content that the instant sales contract should be cancelled or invalidated, each of them issued a certificate of content.

[Ground of Recognition] Unsatisfy, Gap evidence 2, Eul evidence 1 and 3, witness testimony of 00;

The purport of all pleadings

2. The assertion and judgment

A. Party’s assertion

On September 26, 2013, the Plaintiff and the Defendants paid the remainder of KRW 800 million and damages for delay (hereinafter “the remainder, etc.”) to the Plaintiff, and the Defendants agreed to cooperate with the Plaintiff in receiving the loan as collateral. However, the Defendants demanded additional transfer income tax on the remainder, October 7, 2013, which is the payment date of the remainder, and did not cooperate with the loan. The instant sales contract was lawfully rescinded by delivery of proof to the Defendants on October 15, 2013, which was sent by the Plaintiff to the Defendants due to the Defendants’ refusal of performance. Accordingly, the Defendants asserted that they have the obligation to refund the down payment and pay the penalty.

As to this, the Defendants requested the renewal of the sales contract as the actual transaction price and notified the Plaintiff of the cancellation of the sales contract in this case. However, on September 26, 2013, the Plaintiff notified the Plaintiff that he would pay the remainder, etc., it is merely allowing the Plaintiff’s performance, and there was no agreement that the Defendants would cooperate with the Plaintiff’s real estate mortgage loan. Nevertheless, the Plaintiff did not demand the preparation of the sales contract as the actual transaction price again on October 7, 2013 and perform the balance, etc. Accordingly, the sales contract in this case was terminated on August 7, 2013 due to the Plaintiff’s cancellation notice, or the Plaintiff did not cancel the obligation to return the down payment and the penalty due to the Plaintiff’s refusal to pay the remainder, etc.

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B. Determination

(1) In the real estate sales contract which is a bilateral contract, if the buyer wants to perform excessive obligations to the seller which have no contractual obligation after the date of performance becomes more than the date of performance, the buyer is deemed to have already expressed his/her intention to perform his/her obligations.

A contract may be rescinded without the provision of performance of one's own obligation or peremptory notice (see Supreme Court Decision 92Da9463 delivered on September 14, 1992, etc.). On the other hand, a contract may be rescinded in advance due to non-performance of obligation.

In the case of cancelling a contract due to the so-called "non-performance", the requirements for cancelling a contract are alleviated when compared with the cancellation of the contract at the time of delay due to the other party's peremptory notice and simultaneous performance because the other party's refusal to perform his/her obligation is not required. Thus, in order to recognize implied intention of refusal of performance by taking into account the various circumstances at the time of the contract or after the contract, in addition to cases where the other party explicitly expresses his/her intention of refusal of performance, such intention of refusal shall be clearly recognized in light of the circumstances (see Supreme Court Decision 2010Da77385, Feb. 10, 201, etc.).

(2) On August 7, 2013, the Plaintiff asserted that the actual transaction was committed by the Defendants with an agreement to re-preparation the sales contract and entered into such agreement. The Defendants asserted that the Plaintiff rescinded the instant contract on August 7, 2013, but the following circumstances, which were recognized by the facts acknowledged as above and the aforementioned evidence, were as follows. In other words, the Defendants, as the Defendants, did not want to re-preparation the sales contract without any consideration that incurred losses in the reduction of the purchase price due to the preparation of the instant contract. On August 21, 2013, the Defendants agreed to receive the remainder payment of the land owned by the Defendants even after the date of the remainder payment, and unlike the Plaintiff seeking the implementation of the instant sales contract, the Defendants, unlike the Plaintiff, did not have avoided the implementation of the instant sales contract with the Plaintiff, and the Defendants did not have been able to maintain the remainder of the sales contract and pay the remainder of the transfer income tax in addition to the amount of the remainder.

Therefore, the Plaintiff’s payment of the remainder, etc. notified as text messages on September 26, 2013 is acceptable.

However, on October 7, 2013, when the Plaintiff demanded the re-preparation of the sales contract as the actual transaction was in place in order for the Defendants to pay the remainder, etc., the Defendants cannot be deemed to have agreed to re-preparation the sales contract as the actual transaction was due to the payment of the remainder, etc. In full view of the fact that the actual transaction was demanded by the Plaintiffs to bear capital gains tax on the amount which was incurred by the preparation of the sales contract. Furthermore, the Defendants cannot be deemed to have agreed to re-preparation the sales contract as the payment of the remainder, etc., and the Defendants were to have agreed to perform the contract until October 7, 2013, on the premise that the instant sales contract was effective. Thus, it is difficult to conclude that the Plaintiff failed to re-preparation the sales contract as the Plaintiff’s request for re-preparation on August 7, 2013, which was prior to the payment of the remainder. However, it is difficult to conclude that the Defendants did not clearly express the intent to refuse the contract or refuse the contract of this case.

Ultimately, it is not possible to refuse the performance of the remainder solely on the grounds that the original contract and the instant contract by agreement of the Defendants were in force under the private law and the contract was prepared differently from the actual transaction price. Thus, the Plaintiff’s refusal of performance of the remainder is a non-performance, and the Plaintiff’s refusal of performance constitutes a refusal of performance as a result of the Plaintiff’s refusal of performance.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is dismissed as without merit. It is so decided as per Disposition.

Judges Park Jae-jin