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(영문) 서울고등법원 2016.03.25 2015나18765
약정금
Text

1. Of the judgment of the court of first instance, the part against the defendant exceeding the amount ordered to be paid below shall be revoked.

Reasons

1. The grounds for the court’s explanation on this part are as follows: (a) the “D” in the second 9 line of the judgment of the court of first instance is used as “F”; and (b) the second 17th line of the judgment of the court of first instance is the same as the part on the “1. Recognition” of the grounds for the judgment of the court of first instance, except where the “Engine” in the second 17th place of the judgment is used as “Dong Si”; and (c) thus, it is cited as it is in accordance

2. The parties' assertion

A. The Plaintiff’s assertion that the land of this case is within a military installation protection zone and obtained the consent thereof after consultation with the military. In the vicinity of the land of this case, as explosives-related military installations apply for permission for development activities for the purpose of housing construction, the military consent cannot be obtained even though the application is filed. This constitutes “when the profit is rejected” which is the ground for returning the agreed amount stipulated in paragraph (2) of the special agreement of this case, and thus, the Defendant is obliged to pay the agreed amount of KRW 30 million and delay damages

B. The defendant's assertion that the plaintiff did not take a military consultation procedure on the land of this case and is unable to obtain permission for development activities. Thus, this cannot be deemed to fall under "when the acquisition is rejected" as stipulated in paragraph (2) of the above special agreement, and there is no fact that the plaintiff was notified of non-permission for development activities, and there is no fact that it is confirmed that development activities are impossible

3. In full view of the respective entries and arguments in Gap evidence Nos. 1, 13, 14 and Eul evidence Nos. 1, the plaintiff entered into the instant contract in order to newly construct detached houses on the ground of the instant land, and the defendant was well aware of them. The instant land should obtain prior consent in order to obtain permission for development activities in a military facility protection zone. The defendant, separate from the instant contract, on July 24, 2014, shall be separately from the instant land, 9,20 square meters of the instant land.

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