2019 Ghana 73198 Undue gains

A

Attorney Don-hee, Counsel for the defendant-appellant

B

October 30, 2019

November 27, 2019

1. The defendant shall pay to the plaintiff 40 million won with 12% interest per annum from February 22, 2019 to the day of complete payment.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Facts of recognition;

According to the statement in Gap evidence No. 1, the plaintiff can recognize the fact that he/she remitted 40 million won to the defendant on May 16, 2016.

2. The parties' assertion

A. The plaintiff

Around May 2016, the Plaintiff was scheduled to enter into a sales contract with C to purchase 7,654 square meters (hereinafter referred to as “instant land”) prior to Seoyang-gu, Seoyang-gu, Seoyang-gu, Seoyang-gu, Seoyang-gu, the Defendant owned by the Defendant. On May 16, 2016, the Plaintiff wired KRW 40 million to the Defendant on May 16, 2016. However, since the sales contract for the instant land was not entered into between the Plaintiff and the Defendant, the Defendant is obligated to pay the Plaintiff an unjust enrichment of KRW 40 million and delay damages therefor.

B. Defendant

The Plaintiff’s KRW 40 million paid is part of the down payment pursuant to the sales contract for the instant land between the Plaintiff and the Defendant. However, the Plaintiff did not perform its obligations under the sales contract for the instant land by failing to pay the remainder down payment of KRW 360 million, and the Defendant confiscated KRW 40 million paid by the Plaintiff. As such, the Plaintiff’s claim cannot be complied with.

3. Determination

A. Whether a sales contract for the instant land between the Plaintiff and the Defendant was concluded

In order to establish a contract, there is a need for agreement between the parties to the contract, and such agreement is not required with respect to all matters that form the content of the contract in question, but with respect to its essential elements or important matters, an agreement on the standards and methods that can be specified in the future, at least in detail, should be reached (see, e.g., Supreme Court Decision 2000Da51650, Mar. 23, 2001).

In light of the above legal principles, in light of the following circumstances, it is reasonable to view that the Plaintiff and the Defendant did not have any specific agreement on the important matters of the sales contract for the instant land. Thus, it cannot be deemed that the sales contract for the instant land was concluded between the Plaintiff and the Defendant.

① A sales contract for the instant land between the Plaintiff and the Defendant was not prepared.

② In light of the amount claimed by the Defendant, which was set up as the sales price of the instant land, or the rate ordinarily paid as the down payment of real estate sales contract, the amount of KRW 40 million paid by the Plaintiff to the Defendant is less than the down payment of real estate sales contract.

③ The Defendant stated that the Plaintiff would return KRW 40 million upon the purchase and sale of the instant land to the Plaintiff demanding the return of KRW 40 million.

④ The Defendant appears to have received KRW 40 million from the Plaintiff as a provisional contract deposit when concluding a sales contract on the instant land between the Plaintiff and the Defendant. The evidence submitted by the Defendant alone is insufficient to deem that the specific content of the sales contract, including the amount of the purchase price, the method and timing for payment of the purchase price, and the withdrawal of voluntary auction in progress on the instant land, was established.

B. Whether the Plaintiff returned KRW 40 million transferred

As seen earlier, insofar as a sales contract for the instant land has not been concluded, it is reasonable to view that the Plaintiff’s KRW 40 million, which the Plaintiff paid to the Defendant, is subject to a return as unjust enrichment if a sales contract is concluded later, by stating that the Plaintiff intended to enter into the sales contract for the instant land, and that the deposit or provisional contract was partially paid out of the down payment, but is not constituted if the sales contract is not concluded later (the deposit or provisional contract, unlike the down payment having the nature of the cancellation money in principle pursuant to Article 565(1) of the Civil Act, shall be deemed as subject to a return as unjust enrichment (the deposit or provisional contract shall not be deemed as having the nature of the cancellation amount as a matter of course, and there is no evidence to deem that there was a special agreement between the Plaintiff and the Defendant to vest the Defendant as the cancellation amount or a penalty).

C. Sub-decision

Therefore, the Defendant is obligated to pay to the Plaintiff delay damages calculated at the rate of 12% per annum from February 22, 2019 to the day of full payment, which is the day following the delivery of a copy of the complaint of this case, as sought by the Plaintiff, after demanding the Plaintiff to return unjust enrichment of KRW 40 million and its amount to the Defendant.

4. Conclusion

If so, the plaintiff's claim is justified.

Judges Song Jong-soo