(영문) 광주지방법원 2020.06.26 2019나1929 | 리걸엔진

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자간(%)

(영문) 광주지방법원 2020.06.26 2019나1929

계약금반환

Text

1. The plaintiff's appeal is dismissed.

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

The purport of the claim and appeal is the purport of the appeal.

Reasons

1. Basic facts

A. On September 12, 2018, the Plaintiff entered into a sales contract with the Defendant on the following terms: (a) purchase price of KRW 13,19 square meters (hereinafter “instant land”); and (b) purchase price of KRW 53 million on the date of the contract; and (c) purchase price of KRW 13,00,000,000 on the date of the contract; and (d) the remainder of KRW 40,000,000 on October 5, 2018 (hereinafter “instant sales contract”).

B. The Plaintiff and the Defendant agreed in the instant sales contract as follows, and on September 12, 2018, the Plaintiff paid the down payment of KRW 13 million to the Defendant.

In the event that the seller has neglected the contract deposit, he shall compensate the buyer for the double amount of the contract deposit with the penalty, and when the buyer has neglected the contract deposit, the contract deposit shall be regarded as a penalty and lost the right

This provision shall also apply even after the commencement of contract.

C. On October 1, 2018 and on October 26, 2018, the Plaintiff notified the Defendant that part of the instant land is being used as the site of D’s neighboring land (hereinafter “non-party land”) land (hereinafter “non-party building”) and sold the non-party building to a non-party other than the Plaintiff for the reason that it was “the cancellation of the instant sales contract.”

Then, around October 17, 2018, the Defendant notified the Plaintiff that the instant sales contract was cancelled due to the Plaintiff’s failure to pay the remainder to the Plaintiff.

[Ground of recognition] Facts without dispute, Gap evidence 1, 2, Gap evidence 3-1 to 3, the purport of the whole pleadings

2. The plaintiff's cause of claim and judgment

A. The gist of the Plaintiff’s claim (1) was known that part of the instant land was used as the site for the Nonparty’s building at the time of the conclusion of the instant sales contract, but the area used as the site and passage of the Nonparty’s building and the warehouse building located in E constitutes approximately 73% of the total area of the instant land as KRW 688 square meters.

It is impossible to exercise the plaintiff's real right because it exceeds the expected area at the time of concluding the contract.

유사 판례

-광주지방법원순천지원 2019.07.24 2019가단71490

-서울동부지방법원 2015.02.04 2014가합9098

-인천지방법원 2019.04.30 2018가합52548

-광주지방법원 2017.09.15 2017나50910

-서울중앙지방법원 2015.08.13 2014가단5064441