어음금
1. Of the judgment of the court of first instance, the part against the plaintiff falling under the following order of payment shall be revoked.
1. The reasons why this Court shall explain this part of the basic facts are as follows: “The Defendant and the Defendant” of the first instance judgment is the same as the corresponding column of the judgment of the first instance except for the case where “the Defendant and the Defendant,” as “the Defendant,” and therefore, they are cited by the main sentence of Article 420 of the Civil Procedure Act.
2. Determination
A. Determination as to the cause of claim - In general, when one of the parties expressed in advance his/her intent not to perform his/her own obligation in the bilateral contract when the Plaintiff’s refusal of performance by the Defendants, the other party may rescind the contract without demanding performance or providing the performance of his/her own obligation. Determination as to whether to express such intent ought to be made by comprehensively examining the behavior of the parties and the specific circumstances before and after the contract.
(see Supreme Court Decision 97Da30257, Nov. 28, 1997). According to the above basic facts, Defendant B clearly expressed to the Plaintiff the intent not to perform the obligation under the instant exchange contract at the latest, August 21, 2013, to the effect that the Plaintiff would not perform the obligation under the instant exchange contract.
As such, the plaintiff can rescind the exchange contract of this case even if he did not perform his own obligation.
(1) Defendant B, on behalf of the other co-owners, expressed his/her intent to refuse to perform the entire instant Claim 2 on behalf of Defendant C, and even if not, the instant exchange contract is indivisible with respect to each of the Defendants’ respective shares. Thus, even if Defendant C’s obligation to transfer ownership of the instant shares is fulfilled, it is reasonable to deem that the performance alone cannot achieve the purpose of the instant exchange contract, and thus the Plaintiff can rescind the entire instant exchange contract. However, since it is apparent in the record that the copy of the Plaintiff’s complaint containing the declaration of intent to cancel the instant exchange contract was delivered to the Defendants on October 14, 2013, the same day is the same.