[2] The case holding that in a case where the sales contract was terminated when the object of the sale and purchase was sold in the auction procedure without any causes attributable to both parties, the seller is obligated to return the down payment already received, and the buyer is obligated to return unjust enrichment equivalent to the rent acquired by occupying and using the object, in accordance with the principle of risk burden

[2] The case holding that in a case where the sales contract was terminated when the object of the sale and purchase was sold in the auction procedure without any causes attributable to both parties, the seller shall return the down payment already received in accordance with the principle of risk burden, and the buyer shall be liable to return unjust enrichment equivalent to the rent acquired by occupying and using the object.

1. Ground of appeal No. 1

According to the reasoning of the judgment below, since around April 26, 2005, the day following the completion of the registration of ownership transfer for each of the instant real estate under the name of the defendant (Counterclaim Plaintiff; hereinafter "the defendant"), four of the machinery and appliances purchased from the defendant (Counterclaim defendant; hereinafter "the plaintiff") from the plaintiff were purchased from the plaintiff during work in the building of this case, and the non-party 3 et al., who is the plaintiff's creditor, could not lawfully claim for the cancellation of the registration of ownership transfer for the instant real estate and the delivery of the machinery and appliances within the building of this case on May 7, 2005, the court below's decision 205Da1424 decided that the sale contract of this case against the defendant on May 7, 2005 was not a fraudulent act, and thus, the court below's decision 5,000Da25777 decided on May 20, 200's provisional disposition No. 205Da16577 delivered on each of this case's.

2. The second ground for appeal

As seen earlier, inasmuch as the right to refuse payment is acknowledged to the Defendant, the buyer, pursuant to Article 588 of the Civil Act, the Defendant cannot be deemed to have a legal obligation to preserve the registration name of each of the instant real estate in lieu of the Plaintiff’s loan obligation or its interest, or a duty under the good faith principle. Meanwhile, the lower court’s determination that the Defendant did not assume any delayed liability even if the Defendant did not perform the obligation to accept the collateral and pay the balance, shall be deemed to include the purport of rejecting the assertion that the Defendant is liable for performance based on the good faith principle. Therefore

3. Ground of appeal No. 3

Article 537 of the Civil Act provides that "if the performance of an obligation of one of the parties to a bilateral contract becomes impossible due to any cause for which neither of the parties is responsible, the obligor may not demand performance of the other party," and adopts the obligor risk burden principle. If the performance of an obligation is impossible without any cause attributable to both parties, the obligor is exempted from the obligation to perform the obligation and may not claim any return, as well as the performance of the obligation. Therefore, if both parties did not have any benefit, the contractual relationship terminates, and the performance of the obligation already performed is a performance without legal cause, and thus, the claim for return

According to the reasoning of the judgment below, with respect to the part concerning the claim for the return of the down payment among the counter-claim claims by the defendant, the court below determined that the contract of this case between the plaintiff and the defendant was terminated when the real estate of this case was sold at the auction procedure, and since there was no reason attributable to the plaintiff and the defendant, the obligation of the defendant is extinguished pursuant to the principle of obligor risk burden. Thus, the payment already performed by the defendant is not legally attributable and the plaintiff must return to the defendant the payment received in accordance with the principle of unjust enrichment. Although the defendant asserted the impossibility of performance due to the plaintiff's cause attributable to the plaintiff and sought the return of the down payment, it cannot be deemed that the contract was terminated when the contract was terminated when the contract was not performed without any cause attributable to both parties, and therefore, the plaintiff should return the down payment already received to the defendant. On the other hand, as to the claim for the return of unjust enrichment equivalent to the rent of the plaintiff's main claim, the contract of this case was not rescinded due to the non-performance due to the defendant's cause.

However, in the plaintiff's legal representative's preparatory documents as of August 25, 2008 and the preparatory documents as of September 9, 2008, it is evident in the records that the plaintiff's legal representative asserted that " even if the non-public defendant has a right to refuse to accept the debt and to pay any balance on the ground of the filing of a lawsuit seeking revocation of a fraudulent act, the defendant could not have the plaintiff continue to hold the real estate and the machinery, apparatus, etc. of this case that was already pre-paid by the plaintiff while the defendant did not ultimately assume the obligation and pay any balance, and can not have the benefit accrued from the possession thereof." However, the court below accepted the plaintiff's claim on the part of the defendant's claim for the return of the down payment, on the grounds as seen earlier, on the contrary, on the other hand, on the part of the plaintiff's claim for the return of unjust enrichment equivalent to the rent of the plaintiff's main claim, the court below erred by failing to determine the plaintiff's conjunctive claim.

In addition, as determined by the court below, if the sales contract of this case became impossible due to a cause not attributable to both the plaintiff and the defendant, in light of the legal principles as seen earlier, the defendant is obligated to return unjust enrichment equivalent to the rent acquired by occupying and using each of the instant real estate to the plaintiff. Thus, the error of the court below's rejection of the judgment has affected the conclusion of the judgment.

4. Conclusion

Therefore, the part of the judgment below's claim for restitution of unjust enrichment among the main claim is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)