2014Na103754 Return of the purchase price

A person shall be appointed.

B Corporation

Attorney Han-young et al., Counsel for the defendant

Daejeon District Court Decision 2014Da7503 Decided June 17, 2014

October 17, 2014

November 7, 2014

1. The part of the judgment of the court of first instance against the plaintiff corresponding to the money ordered to be paid below shall be revoked.

2. The defendant shall pay to the plaintiff 20, 975, 905 won with 5% interest per annum from February 4, 2014 to November 7, 2014, and 20% interest per annum from the next day to the day of full payment.

3. The plaintiff's remaining appeal is dismissed.

4. All costs of the lawsuit shall be borne by the defendant.

5. Paragraph 2 can be provisionally executed.

The judgment of the court of first instance is revoked. The defendant shall pay to the plaintiff 20, 975, 905 won with 20% interest per annum from the day following the delivery of the original copy of the order for payment of this case to the day of full payment.

1. Basic facts

A. 1) On June 12, 2002, the Plaintiff entered into a sales contract (hereinafter referred to as “the sales contract of this case”) with the Defendant, whereby the Plaintiff and the Defendant enter into force a sales contract with the effect that: (a) the Plaintiff would purchase the purchase price at KRW 81,425,00 for the land for neighborhood living facilities 651; and (b) the Defendant would pay the Defendant an amount calculated by adding interest of 5% per annum to the above purchase price in equal repayment in ten years (from June 10, 2003 to June 10, 2012).

2) Meanwhile, the major terms and conditions between the Plaintiff and the Defendant regarding the rescission of the instant sales contract are as follows.

Article 15 (Cancellation of Contracts)

(1) In any of the following cases, A (Defendant) may rescind this contract:

3. Eul (Plaintiffs 15 days for delay in the payment of the purchase price and submission of justifiable grounds

When, even though a grace period has been set and notified to implement it, the person fails to implement it within such period.

(6) When this contract has been terminated pursuant to paragraphs (1) and (2) 1, A shall receive from B.

Of the proceeds, the contract bond shall be reverted to A as a penalty, and for the financial loans, A and B.

The principal and interest shall be repaid to financial institutions in accordance with the agreement and special agreement entered into by the convergence institution, and the balance shall be E

In such cases, the deposit interest rate shall belong to A from among the amount to be returned to B.

B. After the conclusion of the instant sales contract, the Defendant sent 42, 132, and 390 won, which were not paid to the Plaintiff until October 15, 2013, to the effect that the Plaintiff did not pay the purchase price after June 14, 2007, 100, 2000, 30 won, by October 21, 2013, 200: (a) the instant sales contract was rescinded on October 22, 2013; (b) the instant contract was rescinded on 108, 205, 30, 100 won, 50 won, 50 won, 50 won, 520, 208, 100 won, 50 won, 520, 208, 19, 2050 won, 208, 19, 250 won.

C. After that, on November 4, 2013, the Defendant deposited KRW 52,88, and KRW 401 as the Daejeon District Court No. 6218, 2013, with the Plaintiff as the principal deposit.

【Uncontentious facts, entry of Gap evidence Nos. 1 through 4, the purport of the whole pleadings

2. Determination as to the cause of action

A. The plaintiff's assertion

The Plaintiff asserts to the effect that the agreement on the scope of restitution following the cancellation under the instant sales contract is null and void, and that the Defendant shall return to the Plaintiff 5% interest per annum as stipulated in the Civil Act from the date on which the Plaintiff received it with respect to the purchase price paid by the Plaintiff. As such, the Defendant asserts that the interest calculated as above should return the amount calculated by deducting the amount the Defendant paid as interest from the interest calculated as above should be returned to the Plaintiff).

B. Determination

1) Article 9 of the Act on the Regulation of Terms and Conditions (amended by Act No. 7108 of Jan. 20, 2004, hereinafter referred to as the "Terms and Conditions Regulation Act") provides that "any of the following provisions among the provisions of the terms and conditions concerning the cancellation or termination of a contract shall be null and void." Paragraph 4 of the same Article provides that "The duty to restore an enterpriser due to the cancellation or termination of a contract or his/her duty to compensate for losses" shall be reduced unfairly, and Paragraph 2 of Article 548 of the Civil Act provides that interest shall be added from the date of receipt of the contract if the contract is terminated. Thus, the terms and conditions excluding interest shall be presumed unfair to be unfair to be unfavorable to the customer as a result of the cancellation or termination of the contract, and thus, it shall be deemed null and void unless there is any reasonable ground to justify this (see, e.g., Supreme Court Decision 201Da4284, Apr. 28, 2012).

2) In light of the above legal principles, the sales contract of this case becomes the content of a contract prepared in advance in order to conclude a contract with many buyers when the defendant sells marginal farmland development project district to the same purchaser as the plaintiff. Thus, Article 2 of the Act on the Regulation of Terms and Conditions applies to the terms and conditions of the contract of this case where the contract of this case was cancelled due to the delay in the plaintiff's obligation to pay the purchase price, and the interest shall be deemed null and void unless there is any reasonable ground to justify the return of the purchase price already received by the defendant, and therefore, the above provision shall be deemed null and void.

3) Furthermore, we examine the scope of the Defendant’s return.

In Article 15(6) of the instant sales contract, the part excluding interest that the Defendant shall return to the Plaintiff at the time of the rescission of the instant sales contract is null and void. According to Article 379 of the Civil Act, the interest rate of this claim is set at 5% per annum, unless otherwise provided by other Acts or agreed by the parties. Therefore, the Defendant shall pay the Plaintiff the interest at an annual rate of 5% from the date of receipt of the purchase price paid by the Plaintiff. In calculating the interest on the purchase price that the Defendant received from the Plaintiff, the Defendant was KRW 21,971,239, as follows, and the said interest should be added to the purchase price and returned to the Plaintiff. The Defendant, on October 22, 2013, deposited KRW 428,551, out of the sales price and the interest thereon, as seen earlier.

A person shall be appointed.

Therefore, the Defendant is obligated to pay damages for delay at a rate of 20% per annum as prescribed by the Civil Act, from February 4, 2014, which is the day following the service of the original copy of the instant payment order, to the Plaintiff, among the interest calculated as above, the Defendant deducted KRW 428,51,551, and KRW 688 ( = 21,971, KRW 239, KRW 428, and KRW 551) that the Plaintiff seeks, from the day when the Defendant was served with the original copy of the instant payment order, to the day when November 7, 2014, which is the date when the Defendant was served with the original copy of the instant payment order, by November 7, 2014.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the above scope of recognition and is dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair, the part against the plaintiff who ordered payment of the above amount among the judgment of the court of first instance shall be revoked and order the defendant to pay the above amount, and the remaining appeal of the plaintiff shall be dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge shall have jurisdiction over the transmission of leather

Judges Lee Jae-soo

Judges Man-man

1) The plaintiff asserted that he paid the above amount to the defendant on the above date, and that the sum of the above amount was paid by the defendant.

The total amount of 10 won is more than the total amount of the purchase price. This appears to be an error in calculation and the difference is very small, and thus, the restitution team mentioned later.

The scope of refund shall be calculated on the basis of the amount claimed by the plaintiff.

2) In the first instance court, the Plaintiff asserted that the Defendant’s rescission of the instant sales contract is improper, but the purport of the claim is to each of the instant cases.

Under the premise that each contract has been rescinded, it is sought to restore it to its original state, and there is no objection to the cancellation of the contract of this case.

Since the above statement of grounds for appeal was made after the submission of the statement of grounds for appeal, the above argument shall be deemed to have been withdrawn.

subsection (1) of this section.