1. The defendant shall pay to the plaintiff 132,918,205 won and 132,90,000 won among them to the day of complete payment.

1. Basic facts

A. On August 25, 2016, the Plaintiff purchased each real estate listed in the separate sheet (hereinafter collectively referred to as “instant land”) from the Defendant for KRW 132,90,000 (hereinafter “instant purchase”) and paid all the price on the same day.

B. The instant sales contract includes a special agreement (hereinafter “instant special agreement”) stating that “If a road is not opened within two years from the contract date, this contract shall be null and void, and the registration of ownership transfer shall be cancelled and the purchase price shall be returned without any condition.”

C. Until now, a road has not been constructed on the instant land.

[Ground of recognition] Facts without dispute, entry of Gap evidence 1-1 to 6, and evidence 3, the purport of the whole pleadings

2. Determination

A. Comprehensively taking into account the factual basis of the determination on the cause of the claim, it is reasonable to deem that the instant special agreement stipulates that the road is not constructed on the instant land within two years from the date of the sales contract as the condition for the rescission of the instant sales contract. Since the said special agreement had not been constructed on the said land for more than two years since the date of the instant sales contract, the said condition was fulfilled and the instant sales contract was invalidated

Therefore, the defendant shall return the sales price of this case to the plaintiff as unjust enrichment.

However, while the Plaintiff claimed for the payment of damages for delay from August 25, 2016, the payment date of the purchase price, as seen earlier, the instant sales contract became null and void due to the fulfillment of the rescission condition. As a result, Article 748 of the Civil Act shall apply to the scope of return of unjust enrichment as the duty to return the seller’s return of unjust enrichment, and Article 548(2) of the Civil Act shall not apply mutatis mutandis to the scope of return of unjust enrichment by nature.

(See Supreme Court Decision 96Da54997 delivered on September 26, 1997). In this case where the defendant did not assert or prove that he is a malicious beneficiary, the defendant is a malicious beneficiary, Articles 748(2) and 749 of the Civil Act.