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(영문) 서울남부지방법원 2014.08.22 2014가합103856
약정금
Text

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Reasons

1. Basic facts

A. On March 20, 2008, the Plaintiff, the purpose of which is real estate rental business, development business, etc., entered into a contract with the Defendant to purchase the land for housing development project (hereinafter “instant land”) with the amount of KRW 1.4 billion in price, for the purpose of using the land for housing development project with the Defendant, the amount of KRW 1.14 billion in the land owned by the Defendant (hereinafter “instant contract”), and paid the down payment of KRW 1.1 billion in the same day.

B. The instant land was located within the land transaction permission zone, but the Plaintiff and the Defendant were unable to obtain land transaction permission for the instant contract by June 30, 2008, the instant contract was null and void, and the Defendant agreed to return the amount received to the Plaintiff (hereinafter “instant special agreement”).

C. The Plaintiff and the Defendant did not obtain land transaction permission until June 30, 2008, and the designation of land transaction permission zone was cancelled on January 30, 2009.

[Ground of recognition] Unsatisfy, entry of Gap evidence 1 to 4 (Evidence with Serial Nos. 1 to 4) and the purport of whole pleadings

2. Determination as to the claim

A. 1) The Plaintiff’s assertion 1) agreed to return the down payment in the event that the Defendant did not obtain the land transaction permission, and the sale and purchase of the land within the land transaction permission zone was in a dynamic invalidation, and the instant contract was null and void because the Plaintiff and the Defendant did not obtain the land transaction permission. As such, the instant contract became final and conclusive, the Defendant is obligated to return the down payment received as unjust enrichment to the Plaintiff pursuant to the instant special agreement or (2). (2) The instant contract concluded by the Defendant for the implementation of the Plaintiff’s business, which constitutes a commercial activity, and both the Plaintiff’s claim for return of down

The plaintiff's lawsuit of this case is filed after five years have passed since it was impossible to obtain permission for land transaction.

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