(영문) 광주지방법원 2015.12.04 2015나4661 | 리걸엔진

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(영문) 광주지방법원 2015.12.04 2015나4661

권리금반환

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1. The defendant's appeal is dismissed.

2. The costs of appeal shall be borne by the Defendant.

Purport of claim and appeal

1..

Reasons

1. Basic facts

A. On September 26, 2014, the Plaintiff agreed to take over the restaurant located in Seo-gu, Seo-gu, Gwangju (hereinafter “instant store”) operated by the Defendant at KRW 17,000,000 (hereinafter “instant agreement”). By September 27, 2014, the Plaintiff paid the Defendant KRW 5,000,000 out of the said premium (hereinafter “instant payment”).

B. However, on September 29, 2014, the Plaintiff demanded the Defendant to return the down payment already paid on the ground that the Plaintiff was unable to operate the instant store.

Accordingly, on October 4, 2014, the Defendant posted an advertisement to re-sale the instant store, and around October 19, 2014, returned KRW 2,000,000 to the Plaintiff.

C. On November 20, 2014, the Defendant concluded a transfer contract with D and the instant store amounting to KRW 15,000,000 with respect to the instant store.

[Reasons for Recognition] Unsatisfy, Gap evidence 1, Eul evidence 1, Eul evidence 1, 4, and 5, the purport of the whole pleadings

2. Determination as to the cause of claim

A. The Plaintiff did not conclude any contract between the Plaintiff and the Defendant regarding the instant store, and even if so, the contract was concluded.

Even if the defendant is unable to operate the store of this case and demands the return of the premium, the defendant asserts that he is obligated to return the premium of 5,000,000 won already paid.

B. First, as to whether the contract between the Plaintiff and the Defendant on the instant store was concluded, the fact that the Plaintiff entered into the instant agreement with the Defendant and paid KRW 5,000,000 among the premium was paid. As seen earlier, the instant agreement was concluded orally.

Even if part of the premium is received, it is a binding contract between the plaintiff and the defendant, so this part of the plaintiff's argument is without merit.

C. Next, whether the Plaintiff’s request for the return of the premium arises with the obligation to return it to the Defendant.

유사 판례

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