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1. The judgment of the court of first instance is modified as follows.
The defendant shall pay to the plaintiff KRW 35,000,000 as well as to the plaintiff on October 2017.
Reasons
1. The court's explanation of this part of the basic facts is identical to the reasoning of the judgment of the court of first instance, and thus, citing it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.
2. The assertion and judgment
A. The Plaintiff’s assertion 1) The intermediate payment payment date stipulated in the instant sales contract was changed on December 30, 2016, but the intermediate payment payment date was changed after the date of registration of ownership preservation of the Defendant’s loan of this case, and thus, the Plaintiff did not delay the obligation to pay part of the intermediate payment. Nevertheless, the Defendant sold part of the instant loan to a third party at his own discretion. Since the Defendant’s obligation to transfer ownership registration of the instant loan against the Plaintiff was impossible, the Defendant is liable to pay the Plaintiff KRW 75 million for damages equivalent to the amount of the down payment on the ground of the Defendant’s breach of the instant sales contract. (ii) Even if the Defendant did not violate the instant sales contract, the Plaintiff and the Defendant agreed to cancel the instant sales contract, and thus the Defendant agreed to refund the down payment 35 million won to the Plaintiff, the Defendant is liable to pay the Plaintiff the down payment 35 million won.
B. On January 2017, the part of the first primary claim was that the Defendant sold the instant loan No. J to I, and completed the registration of ownership transfer on March 17, 2017, and sold the instant loan No. L to K on February 2017 and completed the registration of ownership transfer on March 3, 2017.
However, the following circumstances revealed in addition to the aforementioned evidence and the testimony of the witness H of the first instance trial, namely, ① the Plaintiff set the down payment at KRW 35,000,000, which does not amount to 2% of the sales price, due to insufficient funds, and ② the Plaintiff understood that the Defendant received the deposit by leasing the instant loan to another person at that time.