[2] The extent of offering performance for the seller of real estate to delay the buyer's performance

[2] In the case of a real estate sales contract, it is not necessary for the seller to actually provide documents, etc. necessary for the registration of transfer of ownership to omit the buyer's performance, but it is required to prepare the above documents, etc. at least to notify the buyer of the fact and to notify the buyer of the receipt of the balance.

1. As to the debtor's assertion that the creditor of this case led to the existence of an agreement on the building permit of this case as the condition for the suspension or cancellation of the building permit of this case, the court below rejected the debtor's assertion that "the special agreement of this case was set out in the preparatory document stating that "I would enter into a contract with the approval of an apartment rather than the fixed time limit," and stated that "I would enter into a contract with the approval of the apartment". However, the creditor's assertion that the remaining payment date has not yet arrived since the apartment construction business approval has not yet arrived at the expiration of August 15, 1990, or that the remaining payment date has not arrived at the time of the close of the apartment construction approval, and it did not oppose the debtor's assertion that the sales contract of this case was set as the condition for the suspension or cancellation of the building approval of this case's apartment construction business, and the above assertion is merely a part of the interpretation of the special agreement surrounding the construction of the remaining payment date, and judged that the above opinion or legal evaluation is not so-called a right holder.

In light of the records, the above judgment of the court below is just and it is not erroneous in the misapprehension of legal principles as to confession and confession of right holder, or in violation of the principle of pleading. The Supreme Court Decision 84Da122 delivered on May 29, 1984 cited in the ground of appeal is not appropriate for applying this case as it differs from this case and its case. The ground of appeal is not acceptable.

2. In general, when one of the parties in a bilateral contract expresses his/her intention not to perform his/her own obligation in advance, the other party may rescind the bilateral contract without demanding the performance or offering his/her own obligation. However, such expression of intention should be determined by comprehensively examining the parties’ behavior and specific circumstances before and after the contract (see Supreme Court Decision 90Da8374, Mar. 27, 1991). Thus, if the obligor refuses to perform the bilateral contract on the grounds that there are reasonable grounds to believe that the period during which the obligation has not arrived is not due, it shall not be deemed that the period during which the obligation has become due after the court ruling, even if it is proved that the period during which the obligation has become due and that the obligor has clearly expressed his/her intention not to perform his/her obligation.

Upon examining the case, it seems that there is a ground to interpret that the above special agreement as to the payment time of the remainder of the sales contract of this case was interpreted as the time when the creditor approved the business of apartment, as alleged by the creditor, and the remaining payment date has not yet arrived at. The creditor already paid the debtor of this case the amount of KRW 325 million as the sales price was already paid to the debtor of this case. The creditor immediately notified the cancellation of the sales contract of this case and the creditor filed an application for provisional disposition of this case. In light of the above special agreement as to the payment time of the remainder, it cannot be said that the creditor clearly expressed his intention not to pay the remainder even if the creditor was requested to pay the remainder on the ground that the creditor rejected the request for the payment of the remainder due to the existence of the above special agreement as

In the same purport, the court below is just in rejecting the obligor's assertion that the obligor may rescind the sales contract without providing the documents because the obligor clearly expresses his/her intent not to pay any balance even if the obligor provided the obligee with the documents necessary for the registration of transfer of ownership, and there is no error of law by misunderstanding the legal principles on the rescission of the contract due to delay of performance or inconsistency

In addition, since it is impossible to approve the construction project of the apartment of this case within a considerable period of time, it cannot be said that the creditor is objectively unable to pay the remaining price to the debtor. Meanwhile, in the case of a real estate sales contract, the seller does not need to provide the documents, etc. necessary for the registration of transfer of ownership in order to omit the buyer's delay, but it is required to prepare the above documents, etc. at least to notify the buyer of the fact and to notify the buyer of the fact to receive it in addition to the payment of the balance (see Supreme Court Decision 91Da25703 delivered on September 22, 1992). Thus, if the debtor did not prepare the above documents, if the address of the creditor is Seoul, the debtor is residing at the location of the real estate, and the registry office can provide the above documents at any time if the creditor demands it, even if there are circumstances such as the above documents, it cannot be said that the creditor has lawfully provided performance that can cause delay of payment, and therefore, the debtor's right to cancel.

The argument that there is an error of misunderstanding the legal principles concerning the rescission of a contract due to delay of performance is without merit.

3. In light of the records, the court below is justified in rejecting the assertion that the debtor had rescinded the contract on the grounds of change of circumstances and the claim that the above contract was implicitly rescinded between the parties for the reasons of change of circumstances, since the debtor's following arguments, that is, the conclusion of the contract of this case was not entirely anticipated at the time of the conclusion of the contract, and there is no error of law by misunderstanding the legal principles on the cancellation of contract by the change of circumstances and the implied agreement between the parties

4. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)