[토지인도(본소),토지소유권이전등기(반소)][집13(2)민,042]
In concluding an agreement to transfer the ownership of the real estate at the time of the original obligation, only the delivery of the real estate and the registration of ownership transfer has not been made, and the requirements for establishment of payment in kind.
If the ownership of the real estate is transferred on behalf of the original monetary payment and the transfer of the real estate is not made, payment in kind can not be said to have been made.
Article 466 of the Civil Act
Long-term quantity
Oralin
Gwangju District Court Decision 64Na644, 648 delivered on April 21, 1965
The original judgment shall be reversed, and
The case shall be remanded to the Gwangju District Court Panel Division.
With respect to Plaintiff (Counterclaim Defendant)’s ground of appeal No. 4
In its reasoning explanation, the judgment of the court below concluded that the plaintiff entered into a contract with the plaintiff to pay for the remaining debt amounting to KRW 9,165 on the land in order to rule the Kim Jong-ok, the wife's wife, and that the plaintiff delivered it to the defendant (Counterclaim) in March 19, 61, and that Article 607, 608, of the Civil Act cannot be applied to the contract for payment in kind after the due date for payment.
However, in order to take effect as a payment in lieu of the original performance, it is insufficient for the obligor to carry out the other performance in lieu of the original performance, and to simply carry out other performance with the obligee. As such, in a case where the obligor transfers the ownership of the real estate, in which the obligor transfers the ownership of the real estate, the obligor is only responsible for delivering the real estate, and in a case where the ownership of the real estate has not yet been transferred to the obligee, it cannot be deemed that another payment in lieu of the obligor’s original performance has actually existed.
As the Plaintiff (Counterclaim Defendant) transferred the ownership of the instant real estate to the Defendant (Counterclaim Plaintiff) in lieu of the original monetary payment, which is the original obligation to the Defendant (Counterclaim Plaintiff) of Nonparty Kim Jong-ok, his wife, on behalf of the Plaintiff, only delivered the instant real estate, and did not transfer the ownership transfer, and thus, it is difficult to recognize that there was another benefit instead of the original monetary payment, in accordance with the purport of the oral argument. However, the original judgment recognized as an accord and satisfaction is erroneous in the misapprehension of legal principles as to accord and satisfaction. The lower judgment that recognized as an accord and satisfaction is established, although it is difficult for the Plaintiff (Counterclaim Plaintiff) to recognize that there was another benefit in lieu of the original monetary payment, despite the fact that there was no special circumstance, such as that there was a special agreement to extinguish the original obligation by transferring the ownership of the said real estate and to transfer the ownership of the said real estate, and thus, it is possible to have affected the conclusion of the original judgment, and therefore, the appeal on this point has merit, and all of the original judgment should be reversed without any other arguments.
Therefore, according to Articles 400 and 406 of the Civil Procedure Act, it is so decided as per Disposition by the assent of all participating judges.
The judges of the Supreme Court, the two judges of the two judges of the Supreme Court (Presiding Judge)