[2] In a case where one of the conjunctive co-litigants reverses the judgment of the court below on the grounds of the appeal, whether the part of the other party's claim should also be reversed, unless the appeal is justified (affirmative)

A. As to the ground of appeal on the plaintiffs' primary claims

In order to cancel a contract for reasons of impossibility of performance, such impossibility must be caused by an obligor’s cause (Article 546 of the Civil Act). Thus, even if a seller’s obligation to transfer ownership on the subject matter of sale has become impossible, if such impossibility of performance is attributable to the buyer’s cause attributable to the buyer, the buyer cannot rescind the contract for such reason of impossibility (see Supreme Court Decision 2000Da50497, Apr. 26, 2002).

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and rejected the plaintiff 1 corporation's primary claim, such as damages claim following the cancellation of the sales contract of this case, on the ground that the plaintiff 1 corporation's obligation to transfer ownership of this case's land was impossible due to the defendants' fault, since the plaintiff 1 corporation's failure to perform the obligation to transfer ownership of this case's land was caused by the sale of this case's land in the auction procedure for the execution of the right to collateral security established on its responsibility as a result of the sale

Examining the above legal principles and the evidence admitted by the court below in light of the records, the above fact-finding and judgment of the court below are justifiable, and there are no errors in the misapprehension of the rules of evidence or the misapprehension of the legal principles as to causes for impossibility of performance, as otherwise alleged in the ground of appeal. Therefore, this part

On the other hand, the court below rejected Plaintiff 1 Company’s primary claim on the ground that Plaintiff 2 Company is in the buyer’s status of the instant sales contract. According to the records, Plaintiff 2 Company did not submit an appellate brief within the statutory period, and did not include the grounds of appeal in the petition of appeal. Therefore, this part of the appeal by Plaintiff 2

B. As to the ground of appeal on the first preliminary claim by the Plaintiffs

According to the facts and records established by the court below, the plaintiff 1 corporation and the non-party decided to purchase the land of this case and its ground buildings, and paid a total of KRW 940 million out of down payment, intermediate payment, and any balance, and the defendants expressed their intent to cancel the sales contract of this case in the reply dated May 8, 2007 on the ground that the land of this case was sold to a third party due to the reasons attributable to the plaintiff 1 corporation, and that the purpose of the sales contract of this case cannot be achieved due to the sale of the land of this case. The sales contract of this case provides that the seller shall return the total amount of the purchase price received from the buyer and the other party who caused the cause attributable to the buyer. The land of this case was sold KRW 1.51,33 million in the auction procedure. The defendants received dividends of KRW 822,60,189 in total, and the defendants alleged that the sale price of this case was set off against the plaintiff 1305,000,00.

In light of the above facts, the court below rejected Plaintiff 1’s claim on the ground that the above amount exceeds KRW 940 million,00,000,000,000,000,000 won for the Defendants of Plaintiff 1 Co., Ltd., without considering the part paid out in the auction procedure, on the ground that the Defendants’ sales amount of the land of this case exceeds KRW 1.513 billion, without considering the part paid out in the auction procedure, and that the above amount exceeds KRW 9440,00,000,000,000 for the Defendants of Plaintiff 1 Co., Ltd., the court below erred in the misapprehension of legal principles as to the existence and scope of the Defendants’ damage claim, which affected the conclusion of the judgment by failing to exhaust all necessary deliberations. The grounds of appeal by Plaintiff 1 Co., Ltd. pointing this out are with merit.

On the other hand, the court below rejected Plaintiff 1 Company’s preliminary claim on the ground that Plaintiff 2 Company is in the buyer’s status of the instant sales contract. According to the records, Plaintiff 2 Company did not submit an appellate brief within the statutory period and did not state the grounds of appeal in the petition of appeal. Therefore, this part of the appeal by Plaintiff 2 is without merit

However, in a case where the judgment of the court below is reversed on the grounds that the plaintiffs' first preliminary claim constitutes a preliminary co-litigation as stipulated in Article 70 of the Civil Procedure Act, and one of the conjunctive co-litigants is reversed on the grounds that the appeal is reasonable, the part of the plaintiffs' first preliminary claim should also be reversed on the other party's claim as long as the appeal is not reasonable on the grounds of the need for unity. Therefore, the part of the judgment

2. As to the grounds of incidental appeal by the Defendants

Before determining the grounds of incidental appeal by the Defendants, the time limit in which an appeal can be filed is considered to be not later than the expiry of the submission period of the appellate brief corresponding to the time of the closing of argument in the appellate court (see, e.g., Supreme Court Decisions 97Da38299, Nov. 28, 1997; 2000Da30165, Mar. 23, 2001). According to the records, the Defendants are obvious that the notice of receipt of the records of the appeal was served on the Plaintiffs who are the appellant on Dec. 9, 208, which was served on the appellant, and therefore, the Defendants’ incidental appeal by the Defendants is unlawful and cannot be corrected.

3. Conclusion

Therefore, as long as receiving the appeal by the plaintiffs as to the first preliminary claim, it is not necessary to examine the remaining grounds for appeal by the plaintiffs as to the second preliminary claim, and the judgment of the court below is reversed, and the part of the judgment below against the first preliminary claim and the second preliminary claim is remanded to the court below for a new trial and determination. The appeal by the plaintiffs as to the second preliminary claim is dismissed as it is without merit. The incidental appeal by the defendants is dismissed as it is unlawful, and it is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)