1. The defendant's appeal is dismissed.

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

Purport of claim and appeal

Claim:

1. On September 30, 2017, the Plaintiff decided to purchase CMo5 tons truck from the Defendant for KRW 41 million (hereinafter “instant sales contract”) and paid KRW 5 million down payment.

Around November 15, 2017, the Defendant rescinded the instant sales contract on the grounds that the Plaintiff did not pay any balance.

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

2. The assertion and judgment

A. Since the sales contract of this case was cancelled as to the cause of the claim, pursuant to Article 548(1) and (2) of the Civil Act, the defendant is obligated to return to the plaintiff five million won of the down payment.

B. (1) The summary of the Defendant’s assertion was cancelled due to the Plaintiff’s nonperformance, and thus, 5 million won of the down payment was confiscated to the Defendant.

(2) The contract was cancelled due to reasons attributable to either of the parties, unless otherwise stipulated that the contract shall be a penalty, in case where the contract deposit has been received and the contract deposit has the nature of the cancellation money.

Even if the other party can only receive compensation for actual damages incurred in nonperformance of the contract, not a down payment naturally reverted to the other party as a penalty.

(See Supreme Court Decision 2007Da24930 Decided April 29, 2010 (see, e.g., Supreme Court Decision 2007Da24930, Apr. 29, 201). Examining the instant sales contract (Evidence A2), only includes a statement that the down payment is KRW 5 million out of the vehicle sale price of KRW 41 million, and further, there is no provision, such as penalty, stating that “if the seller places a contract, he/she redeems the down payment and forfeits the down payment if

Therefore, in accordance with the above legal principles, the defendant can claim and prove the actual damages caused by the plaintiff's violation of the contract and receive compensation from the plaintiff, and the down payment amounting to five million won is not naturally reverted to the defendant.

Therefore, the defendant's argument is without merit.

3. Conclusion