(영문) 서울고등법원 2017.01.20 2016나2049748

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(영문) 서울고등법원 2017.01.20 2016나2049748

계약금반환

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1. The plaintiff's appeal and the defendant's incidental appeal are all dismissed.

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

Reasons

1. The reasoning of the judgment of the court of first instance cited in the instant case is that of the first instance judgment, except for the following supplement part, and thus, this is acceptable in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. In this case, the Plaintiff and the Defendant did not dispute the termination of the instant sales contract. However, they asserted that, as the instant sales contract was terminated due to the causes attributable to each of the parties, they should be compensated for damages arising from the termination of the contract.

In other words, the plaintiff asserts that the contract of this case was terminated because the defendant failed to perform his/her duty to obtain a security loan of KRW 800 million as security, while the plaintiff asserts that the contract of this case was terminated due to the failure of the plaintiff to pay any balance.

First of all, as to the Plaintiff’s assertion, it is not sufficient to recognize that the Defendant, solely on the sole basis of the phrase “1. the seller secured the sale of the goods to the NAF and disposed of any balance of KRW 800 million by lending the goods to the NAF,” which is indicated in the No. 1 (Real Estate Sales Contract). The Defendant did not otherwise cooperate with the Defendant in the security loan.

There is no evidence that it has interfered with loan execution.

Therefore, it is difficult to accept the Plaintiff’s assertion that the instant sales contract was cancelled due to the Defendant’s fault, and therefore, the Plaintiff’s claim for damages premised on this is without merit.

Even if the Defendant’s default on the foregoing special agreement is acknowledged, according to the Plaintiff’s assertion, the Plaintiff had an opportunity to purchase nearby real estate at a low price by entering into the instant sales contract, thereby resulting in damages equivalent to KRW 50 million in the difference in the purchase price of nearby real estate. The Plaintiff’s assertion is the same.

참조조문

-민사소송법 제420조

유사 판례

-부산고등법원 2012. 01. 13. 선고 2011누3753 판결

-대법원 2012. 05. 12. 선고 2012두2795 판결

-서울고등법원 2019.06.14 2018나2043720

-서울중앙지방법원 2017.05.25 2016가합534922

-의정부지방법원 2017.05.25 2016나10781