[Defendant-Appellee] Defendant 1

1. In the case of real estate sale, in a case where a seller has already sold an object to another person and completed the registration of ownership transfer by re-transfer to a third person even though he/she had an obligation to do so, it is reasonable to view that the seller’s obligation to register ownership transfer to another person is in an impossible state unless there are special circumstances (see, e.g., Supreme Court Decision 80Da1416, Mar. 22, 19

2. The reasoning of the lower judgment and the evidence duly admitted reveal the following facts.

A. On March 3, 2016, the Plaintiff concluded the instant sales contract by setting the sales price of KRW 790,000,000, and the down payment of KRW 40,000 with respect to the newly constructed commercial buildings on land (hereinafter referred to as “instant building”) with the Defendant and Pyeongtaek-si C (hereinafter referred to as “instant building”) as KRW 40,000,000 on the date of the instant contract, and paid the down payment of KRW 40,00,000 on the date of the instant contract, and the remainder shall be paid at the time of completion of the completion inspection and paid at the time of transfer registration of ownership, and agreed to determine it by mutual consultation as of April 30, 2016, which is the scheduled date for

B. On June 23, 2016, the Defendant sent to the Plaintiff a certificate of content that “the contract shall be terminated if the Plaintiff does not make any sale,” by July 24, 2016.” The Plaintiff sent to the Defendant a certificate of content that the Plaintiff shall reimburse the amount of the down payment pursuant to Article 4 of the instant sales contract, on August 3, 2016, on the ground that the seizure of the land was not rescinded until August 3, 2016.”

D. Meanwhile, the instant store was registered in the name of June 22, 2017. According to these facts, in the instant case where there is no evidence to deem that the Defendant provided the Plaintiff with the documents necessary for the registration of the transfer of ownership around July 24, 2016, the instant contract cannot be deemed terminated or terminated by the Defendant’s notice of termination of the contract. On the other hand, on June 22, 2017, the ownership transfer registration for the instant store was completed in the first place, and thus, the Defendant’s obligation to transfer ownership to the Plaintiff is special.

Unless there exist any circumstances, it shall be deemed that the instant sales contract has become impossible due to the Defendant’s cause attributable to the Defendant. Therefore, it is highly probable that the instant sales contract was lawfully rescinded around that time due to the Plaintiff’s statement on May 1, 2018, as the instant sales contract was concluded with a third party on May 9, 2018, when the Defendant completed the registration of ownership transfer for the instant store, and became impossible to implement the instant sales contract due to the Defendant’s cause attributable to the Defendant.

Nevertheless, the court below accepted the reasoning of the judgment of the court of first instance, and rejected the plaintiff's appeal without clearly explaining the grounds for the plaintiff's argument concerning the rescission of the sales contract due to non-performance impossibility added by the court below. In so doing, the court below erred by omitting judgment on the parties' assertion and thereby affecting the conclusion of the judgment. The ground of appeal pointing this out has merit.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Noh Jeong-hee