[가처분이의][공2013상,716]
Whether the other party may rescind the sales contract in a case where the sales contract was established upon the exercise of the right to demand sale as stipulated in Article 18-2 of the former Housing Act, but either party fails to perform his/her obligation (affirmative), and whether the same applies to a case where a person entitled to demand sale fails to perform his/her obligation under the sales contract after filing a lawsuit against the seller for performance of the duty to demand sale based on the exercise of the right to
In cases where a sales contract has been concluded upon the exercise of a claim for sale under Article 18-2 of the former Housing Act (amended by Act No. 11243, Jan. 26, 2012), if either of the parties fails to perform his/her obligation based on the said sales contract, the other party may rescind the said sales contract on the ground of nonperformance in accordance with the general legal principle as to the cancellation of the contract. This is true in cases where a person holding a right to claim sale filed a lawsuit against a seller for demanding performance of his/her obligation based on the exercise of a claim for sale against the seller, but the said person fails to perform his/her obligation under the said
Article 18-2 of the former Housing Act (Amended by Act No. 11243, Jan. 26, 2012); Article 548 of the Civil Act
New Franc Co., Ltd. (Law Firm Tae & Yang LLC, Attorneys Hho-ho et al., Counsel for the defendant-appellant)
The debtor
Suwon District Court Order 2012Ra1416 dated November 2, 2012
The reappeal is dismissed.
The grounds of reappeal are examined.
In cases where a sales contract has been concluded upon the exercise of a claim for sale under Article 18-2 of the former Housing Act (wholly amended by Act No. 11243, Jan. 26, 2012; hereinafter “former Housing Act”), if either party fails to perform his/her obligation based on the said sales contract, the other party may rescind the said sales contract in accordance with the general legal principles concerning the cancellation of the contract on the grounds of nonperformance of obligation. This is true in cases where a person entitled to claim sale filed a lawsuit against a seller for performance of the obligation under the sales contract based on the exercise of a claim for sale, but the said person fails to perform the obligation under the said sales contract thereafter.
The lower court determined as follows: (a) the creditor ordered the debtor to pay KRW 516,123,450 equivalent to the market price of the instant real estate in a lawsuit demanding sale of real estate filed by the creditor upon the exercise of a claim for sale under Article 18-2 of the former Housing Act with respect to the instant real estate owned by the debtor; (b) the creditor’s execution of the procedure for ownership transfer registration based on sale on February 10, 201, became final and conclusive as of March 15, 2012; (c) the debtor urged the debtor to perform the above final and conclusive judgment as of May 15, 2012; and (d) notified the debtor that “where the debtor fails to pay the price within the above period, the sales contract is rescinded upon the lapse of the above period; (d) the creditor did not perform the above obligation until the present period or provided it with the payment; and (e) the above sales contract was lawfully rescinded after the lapse of May 15, 2012.
Examining the records in light of the above legal principles, the judgment of the court below is just, and there is no violation of the Constitution, Act, order, or rule that affected the trial.
Therefore, the reappeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Ko Young-han (Presiding Justice)