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Reasons
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(영문) 대전고등법원 2018.01.17 2017나12637
계약금 및 중도금 반환청구의 소
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1. The part of the judgment of the court of first instance against the plaintiff, which orders payment below, shall be revoked.

The defendant.

Reasons

1. Facts of recognition;

A. The Defendant (i.e., the trade name on February 17, 2016 was changed to the Defendant in “Co., Ltd.”; hereinafter “Defendant, regardless of whether before or after the mutual change, is the company that newly built and sold the D commercial building in Sejong Special Self-Governing City.

B. On March 21, 2014, the Plaintiff entered into a contract for the sales of commercial buildings in which D 103 (hereinafter “instant commercial buildings, regardless of whether it was changed to 109, hereinafter “the change”) were to be sold in KRW 402,020,80 (hereinafter “instant sales contract”) with the Defendant, and paid the instant payment of KRW 240,112,480 in total the down payment and intermediate payment (hereinafter “instant payment”).

C. However, the Plaintiff did not pay any balance by August 15, 2015, which is the remaining payment date, and on October 28, 2015, the Defendant notified the Plaintiff on October 28, 2015 that the instant sales contract should be terminated by November 6, 2015.

However, as the Plaintiff still did not pay any balance arising from the instant sales contract, on December 1, 2016, the Defendant notified the Plaintiff of the fact that “The sales contract of this case was terminated on the grounds of the Plaintiff’s default, the Defendant shall refund the remainder of KRW 176,729,681, which remains after deducting the total of KRW 63,382,79, and the remainder of KRW 40,202,080 from the payment amount of this case, the overdue interest for the remainder of KRW 6,066,659, the settlement management expenses, KRW 1,03,230, and KRW 16,080,830 from the termination fees of the sales contract.”

E. On December 8, 2016, the Plaintiff notified the Defendant that “the Defendant shall deduct the Defendant from the payment amount of the instant case, 63,382,79 won in total, or in excess of the grounds therefor, and thus, the Plaintiff shall return the remainder of KRW 216,101,232 after deducting KRW 24,01,248, which is 10% of the payment amount, from the penalty for breach of contract.”

[Ground of recognition] Facts without dispute, entry of Gap evidence 1 to 5, purport of the whole pleadings

2. The plaintiff's primary claim restitution.

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