[2] Whether the previous seller's offer becomes null and void in a case where the seller has subscribed for the rescission of the contract, but the buyer attached the terms and conditions to the offer or consented to the modification thereof (affirmative)

1. Regarding ground of appeal No. 1

A contract termination or termination is a new contract, regardless of whether a contract has a right of rescission or not, which provides that the parties to a contract shall terminate the validity of the existing contract by mutual agreement and return it to the same state as that in which the contract had not been concluded originally. The requirement is that in order to cancel an agreement, as a general contract comes into existence, there is a mutual agreement between the parties to the contract, namely, the offer and acceptance of the contract (agreement). In order to establish such agreement, the contents of the agreement expressed by both parties must objectively coincide (see Supreme Court Decisions 92Da4130, 92Da4130, 92Da4147, Jun. 23, 1992; 2006Da2490, 2506, Nov. 29, 2007; 2006Da2490, 2506, etc.). However, even if the buyer has subscribed for the rescission of the contract, if the purchaser has consented to it, it shall be deemed that the seller has rejected the offer (see Supreme Court Decision 200120.

The court below held that each content certification sent by the plaintiff to the defendant is a request for immediate return of KRW 90 million paid by the plaintiff when it is difficult to carry out the contract as of December 29, 2003, which entered into on the part of 1/10 (hereinafter "the contract of this case") among each real estate listed in the attached list of the court below's judgment with respect to the defendant's return of money, and that the defendant would not pay KRW 90 million as well as the above 90 million with respect to the plaintiff's expression of intent to cancel the contract of this case by accepting the plaintiff's declaration of intent to cancel the contract of this case. The court below held that the defendant's aforementioned notification can not be viewed as an offer of a new contract of cancellation, and that the plaintiff's subscription to cancel the contract of this case cannot be seen as acceptance of the plaintiff's subscription to cancel the contract of this case. In light of the legal principles and evidence duly adopted by the court below.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, since the contract of this case can be seen as a contract that the plaintiff purchases the share of this case from the defendant in 120 million won, the obligation to pay the plaintiff's purchase price under the above contract of this case and the obligation to transfer ownership registration to the defendant are concurrently performed unless there are special circumstances. According to the records, as to the plaintiff's entering into a lawsuit against the defendant for the execution of the procedure for transfer registration of ownership under the above contract of this case, the defendant stated a preparatory document as of March 4, 2008 to the effect that he cannot respond to the plaintiff's claim since he did not receive 30 million won out of the purchase price during the first preparatory date for pleading of the court below, and the above defendant's argument is the purport of the defense for simultaneous performance. Thus, the court below should have deliberated and decided on the above defense. Nevertheless, the court below ordered the execution of the procedure for transfer registration of ownership against the defendant without any judgment. This decision of the court below is erroneous in the misapprehension of the judgment as to simultaneous performance.

3. Conclusion

Therefore, the judgment below is reversed, and the case is 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 Park Ill-sook (Presiding Justice)