[토지소유권이전등기청구사건][고집1979민,524]
Determination as to whether a contract is a sale contract or a sales contract
If the sale contract does not determine the use date and the price of the object can be determined objectively according to the neighboring land price, the sale contract shall be deemed to be a principal contract on the condition that the object and the price of the object are determined later.
Article 564 of the Civil Act
Supreme Court Decision 79Da1762 delivered on December 28, 1979
208.20
Madung Water Industrial Co.
Busan District Court Msan Branch Court (78Gahap52)
The original judgment shall be modified as follows:
The defendant receives 18,050,000 won from each of the plaintiffs, and at the same time, the defendant executes the procedure for registration of transfer of ownership based on the sale on September 4, 1976, as to the 53 large 1,258 square meters (380 square meters) in Chungcheong-si 413-53 large 1,258 square meters (380 square meters) for each share in the separate sheet.
The plaintiff's remaining claims and the defendant's appeal are dismissed.
The costs of lawsuit shall be divided into three parts through the first and second trials, and one of them shall be borne by the plaintiffs and the remainder by the defendants respectively.
On September 4, 1976, the defendant revoked the part of the original judgment against the plaintiffs, and paid 16,856 won to the same Kim Jong-hee, each of which is 66,856 won to the same Kim Jae-young, such as Kim Jong-young, Kim Do-young, Kim Jong-young, Kim Jong-young, and Kim Young-young, by implementing the procedure for ownership transfer registration on the land in the original judgment to the plaintiffs on the ground of sale and purchase based on the attached shares, and by paying 16,856 won to the same Kim Jong-hee.
The costs of lawsuit shall be changed at the expense of the defendant in both the first and second trials and a declaration of provisional execution.
The part against the defendant in the original judgment shall be revoked and the plaintiff's claim against this revocation shall be dismissed.
The judgment of both the first and second courts that the costs of lawsuit shall be borne by the plaintiffs.
If Gap evidence Nos. 1-2-3, Eul evidence Nos. 5-1, Eul evidence Nos. 1-5, Eul evidence Nos. 5-2, and Eul evidence Nos. 5-2, the authenticity of which is recognized by the testimony of the court below and the witness of the trial court, and the testimony of the above witness (except for the part which is not believed later) are collected from the whole purport of the pleading, the defendant excluded from the non-party Nos. 1-2, the defendant's use of the deceased Kim on Sep. 4, 1976, and he received the above plaintiff Nos. 396-1 coastline 397,858 from the non-party Nos. 1-2, the non-party No. 397, Jun. 15, 1974; the defendant's sale and purchase of the above plaintiff Nos. 1-2, the non-party No. 97700, Nov. 7, 1907; the above non-party No. 7097.
First of all, the plaintiffs asserted that the above Kim Yong-ran and the above agreement between the defendant are a sale and purchase-price, and the defendant asserted that the above agreement is merely a pre-sale agreement for the land of this case that it would be paid in kind from Chungcheong City, and that the defendant notified the plaintiffs of a definite answer on February 11, 1978, which was after the completion of the above reclamation work, to the effect that the above pre-sale agreement became null and void because the plaintiffs failed to give a definite answer within the above period, the above pre-sale agreement is discussed. Thus, according to the evidence No. 5-1 (Sale Contract) of the above contract, although the horizontal number and the purchase-price of the land are not fixed, the completion completion date of the contract is scheduled on September 30, 1976, and even before the completion of construction, Article 4 of the above contract is approved, and if the remaining sale price is deposited to the defendant even before the completion of the sale and purchase-price, the above contract can not be seen as a separate pre-sale agreement.
The plaintiffs sought the implementation of the above-mentioned sale contract for the above-mentioned land and the above-mentioned sale price for the above-mentioned land shall be calculated according to the official soil price of the adjoining land after completion of construction. The land of this case is classified as 61, and the market price of 61,00 won per 380,000, the above-mentioned sale price for the above-mentioned land is merely 9,501,50,000 won, and the above 70,000,000,000 won for the above-mentioned sale price for the above-mentioned land were no more than 0,000,000 won for the above-mentioned sale and purchase price for the above-mentioned land. According to the above-mentioned sale and sale contract for the above-mentioned land, the above 30,000,000 won for the above-mentioned sale and purchase price for the above-mentioned land were no more than 0,000 won for the above-mentioned sale and purchase price for the above-mentioned land. The defendant is not obligated to 20,0,0,
Therefore, the defendant receives the full amount of KRW 18,050,00 from the plaintiffs, who are the successors of the above Kim Yong-ran, and at the same time, the plaintiff is obligated to implement the registration procedure for transfer of ownership on the land of this case according to the shares in inheritance in the annexed sheet. Thus, the plaintiff's claim for this case is justified only within the scope of the above recognition, and the remainder is unfair and dismissed. The judgment of the court below is modified as stated in Paragraph 1 of this Article according to the plaintiffs' appeal because it is not possible to maintain this conclusion as it is partially different, and the plaintiffs' remaining claims and the defendant's appeal are dismissed, and all of the appeals are dismissed, and it is so decided as per Disposition by the application of Articles 96, 93, and 92 of the Civil Procedure Act.
Judges Maximum Ho-ho (Presiding Judge) (Presiding Judge)