2017dada 5015389 Claims for damages

A

B

July 11, 2017

August 8, 2017

1. The defendant shall pay to the plaintiff 17,00,000 won with 15% interest per annum from March 15, 2017 to the day of complete payment.

2. The costs of lawsuit shall be borne by each person;

3. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 17,00,000 won with 15% interest per annum from the day after the delivery of a copy of the complaint of this case to the day of complete payment.

1. Facts of recognition;

A. On December 14, 2016, the Plaintiff concluded a lease deposit of KRW 170 million with respect to the lease deposit (the so-called obligatory lease contract that is not leased differently from the expression in the contract; hereinafter referred to as the “instant contract”) with the Defendant and the Seoul Gangnam-gu Seoul building No. 103 (hereinafter referred to as “the instant real estate”) owned by the Defendant, and paid the Defendant the down payment of KRW 17 million to the Defendant on the date of the conclusion of the said contract. Article 7 of the said contract provides that “If the leased or the lessee fails to fulfill the terms of this contract, the other party may claim against the other party for damages arising from the termination of the contract, and the contract is written that “the down payment shall be deemed as the basis for compensation for damages, unless otherwise agreed on.”

B. However, around October 14, 2016, the date before the conclusion of the instant contract, the Defendant entered into a lease agreement with D on the instant real estate, and accordingly, on December 30, 2016, when D intended to move into the said real estate before the Plaintiff, the instant contract was rescinded as impossible to perform, and the Defendant returned the down payment of KRW 17 million paid to the Plaintiff on January 2, 2017.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 4, purport of the whole pleadings

2. Determination

A. Determination on the cause of the claim

On the other hand, Article 7 of the contract of this case is an estimate of the amount of damages under Article 398 of the Civil Act, and the amount of damages for which the contract is rescinded due to nonperformance shall be deemed to have been liquidated. The fact that the contract of this case was rescinded due to the Defendant’s fault is as seen earlier. As such, the Defendant is obligated to pay to the Plaintiff damages for delay calculated at the rate of 15% per annum from March 15, 2017 to the date of full payment as requested by the Plaintiff, which is the day following the day when the duplicate of the complaint of this case was served to the Defendant, as requested by the Plaintiff.

B. Determination as to the Defendant’s assertion

1) Summary of the assertion

① The liquidated damages clause under Article 7 of the instant contract is the same text as shown in the standard form of the contract from the beginning to the end, and there is no agreement between the parties. ② Even if the scheduled damages for household affairs have its effect as the scheduled damages, the amount of KRW 17 million shall be reduced unfairly in light of the actual damages actually incurred by the Plaintiff. ③ In addition, the Plaintiff shall be deducted from the amount of damages compensation, as a result of the Plaintiff’s failure to pay the remainder of KRW 153 million to be paid to the original Defendant for 51 days from December 31, 2016, the day following the date of the remainder payment of the lease deposit, until February 19, 2017, the amount of KRW 1,068,904 (153 million) (x.05x.05x51/365, less than KRW 165) was reduced in excess of the actual amount of damages.

2) Determination

In light of all circumstances acknowledged under the above, including that the standard form of the contract of this case is used and prepared, but the clause cannot be seen as a standardized contract, and that the defendant seems to frequently take place as a real estate rental business operator, and that there is no statement to the effect that the contract of this case is inconsistent with or rejected the agreement on the liquidated damages under the contract of this case, and that there is no statement to the effect that the above agreement on the liquidated damages is inconsistent with or rejected it, it is insufficient to recognize the facts that the above provision of Article 7 of this case is merely an example as an irregular letter, and there is no other evidence to acknowledge it. Thus, this part of the above assertion is without merit, and there is no reason to acknowledge it. ② The plaintiff's additional director's expenses, storage expenses, temporary accommodation expenses, expenses following the conclusion of the monthly rent contract, expenses following the conclusion of the contract of this case cannot be viewed as a standardized contract, etc. The defendant's assertion that the plaintiff suffered an excessive amount of damages due to the above 10th of the total amount of damages claims and damages.

3. Conclusion

The plaintiff's claim is justified. However, with respect to the burden of litigation costs, the plaintiff filed a lawsuit with the claim amounting to KRW 31,636,200, which is the original claim amount, and reduced, and the progress of other lawsuits, etc., it is determined that each of them should be borne, and it is so decided as per Disposition.

Judges Park Jong-ho