1. In a real estate sales contract, even if the buyer fails to pay the purchase price by the due date for the outstanding payment, the seller may rescind the contract unless the seller offers performance and causes delay in the buyer's performance, such cancellation notice alone cannot be deemed to have been rescinded. However, if there are special circumstances to deem that the contract is a special agreement to cancel the contract only with the due date for the buyer's payment and the notice for the cancellation of the contract without asking whether the seller satisfies the requirements, such as transfer of ownership, etc., and the seller's payment, the above contract shall be deemed to have been rescinded with the due date for the buyer's payment and notice for the cancellation of the contract (see, e.g., Supreme Court Decisions 91Da32022, Oct. 27, 1992; 95Da5467, Mar. 8, 1996).

2. According to the reasoning of the judgment below and the records of this case, the plaintiff is entitled to rescind the remaining 9 billion won for the remaining 5 billion won for the purpose of purchasing all real estate owned by the defendant and buildings not yet completed on the ground and housing projects under the name of the defendant. On June 16, 2005, the contract date of this case is 2.6 billion won, and the remaining 2.4 billion won for the remainder 5 billion won can be paid to the defendant on August 31, 2005. The plaintiff is entitled to rescind the contract for the remaining 9 billion won for the remaining 9 billion won for the remaining 200 billion won for the reason that the contract date of this case was 1.5 billion won for the remaining 5 billion won for the purpose of cancelling the contract (Article 5). The plaintiff cannot request the defendant to cancel the contract for the remaining 200 billion won for the remaining 5 billion won for the reasons that the contract date of this case was 1.5 billion won for the remaining 5 billion won for the reason that the contract was concluded (the above 209 billion won).

Examining the developments and contents of the conclusion of the instant memorandum of Understanding and the sales contract in light of the legal principles as seen earlier, it is reasonable to view that the Plaintiff, while entering into the instant sales contract, agreed to pay all the remainder of the sales price except the down payment without intermediate payment until August 31, 2005, with the intent of the Plaintiff to be at a disadvantage even if the contract was unilaterally rescinded by the Defendant, if the Plaintiff did not pay the remainder of the sales price except the down payment by the due date, “the Defendant may unilaterally rescind the sales contract (the main sentence of Article 1(4) of the sales contract).” Furthermore, in the instant case where the Plaintiff fails to comply with the remainder payment date by September 15, 2005 even if the date of the remainder payment was extended by the first time, the Defendant’s notice of the cancellation was insufficient to deem the first extended payment date, regardless of whether or not the Defendant was equipped with the required documents, such as transfer of ownership, and the Defendant’s notice of cancellation.

Nevertheless, the court below erred in finding that the defendant should first have made the plaintiff perform the contract in order to cancel the contract in this case and had the plaintiff enter into the delay of the payment of the remainder. The court below erred by misapprehending the legal principles on the interpretation of the contract in this case and the cancellation of the contract in this case, and affected the conclusion of the judgment. The ground of appeal pointing this out is with merit. The court below erred by misapprehending the legal principles on the interpretation of the contract in this case and the cancellation of the contract in this case, and affected the conclusion of the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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 Kim Young-ran (Presiding Justice)