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(영문) 대구고등법원 2016.05.03 2015나23094
주권인도청구의 소
Text

1. The plaintiff's appeal and the conjunctive claim added in the trial are dismissed, respectively.

2. After an appeal is filed.

Reasons

1. The reasoning of this court’s judgment on the primary claim is as stated in the first instance judgment’s reasoning, except for adding “the statement in the evidence No. 16 through 18 and the testimony of a witness M of the party in question,” which is insufficient to recognize the Plaintiff’s assertion, and thus, it is consistent with the main text of Article 420 of the Civil Procedure Act.

2. Determination on the conjunctive claim

A. The Plaintiff’s assertion 1) If the Plaintiff’s assertion: (a) if the instant share transfer contract was rescinded by the Plaintiff’s refusal of performance and the Defendant’s declaration of intent to cancel the contract, the Defendants are obligated to pay to the Plaintiff the down payment of KRW 200 million and the damages for delay that the Plaintiff received from the Plaintiff, as restitution according to the said termination of the contract; (b) as the instant share transfer contract was rescinded due to the Plaintiff’s cause attributable to the Plaintiff, the Defendants are not obliged to pay the down payment to the Plaintiff under Article 7(2) of the instant

B. 1) Determination 1) The fact that the instant share transfer contract was rescinded due to the Plaintiff’s cause attributable to the Plaintiff, and Article 7(2) of the instant share transfer contract (hereinafter “instant contract clause”).

The fact that “if the contract is terminated or terminated due to any cause attributable to one of the parties after the payment of the contract amount, the party causing the termination shall pay the penalty, and if Defendant B is the cause provider, Defendant B shall pay twice the down payment of the contract amount to the Plaintiff, and if the cause provider is the cause provider, the payment shall be made in such a manner as not claiming the refund of the down payment of the contract amount.” According to the above facts of recognition, KRW 200,000,000 paid to the Defendants by the Plaintiff, upon the cancellation of the share transfer contract of this case, shall be subject to penalty (Article 398(4) of the Civil Act) in accordance with the said contract provisions.

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