[소유권이전등기][공1992.9.15.(928),2514]
A. In a case where there is an agreement under which the contract automatically terminates if the remainder payment is not made by the date of payment of the remainder, whether the seller has to provide the buyer with the performance of his/her obligation for the purpose of automatically cancelling the contract and cause the buyer to delay the performance (affirmative)
B. The case holding that if a seller prepared a certificate of personal seal impression, a registration right certificate, a certificate of personal seal impression, etc. on the payment date, even if the address of a seller and a provisional registration titleholder stated in the above certificate of personal seal impression does not coincide with that of each other on the registry, it is reasonable to view that the seller provided performance of his obligation
A. In the event that a real estate sales contract does not pay the remainder by the due date for the payment of the remainder, the above sales contract is automatically rescinded, even though the seller has agreed to automatically cancel the contract, only if the seller provides the buyer with his/her obligation on the due date for the payment and cause the buyer to delay the performance, and even if the buyer has attempted to pay the due date, the contract is not automatically rescinded.
B. The case holding that in a case where a seller prepared a seller's certificate of personal seal impression for sale of real estate, a certificate of personal seal impression for cancellation of the seller's provisional registration of the above real estate, other registration certificates, and a certificate of personal seal impression for cancellation of the above real estate, even if the address of a seller and a provisional registration titleholder stated on each of the above certificates of personal seal impression prepared by the seller does not coincide with that of each other's registry, the seller can easily prepare the sale certificate, pre-sale cancellation certificate, power of attorney, etc. using the paper kept in the certificate of personal seal impression between the seller and the certified judicial scrivener's office in preparation for the seller's certificate of personal seal impression between the seller and the provisional registration's office, and that the difference between address and address on the above register can be easily resolved by the buyer's application for registration of change with the certificate of personal seal impression and the provisional registration titleholder's certificate of personal seal impression and the right to register and seal impression
A. Article 544 of the Civil Act; Articles 460 and 568 of the Civil Act
A. Supreme Court Decision 76Da890 delivered on June 8, 1976, 79Da661 delivered on October 30, 1979 (Gong1989, 1294) B. Supreme Court Decision 81Da51 delivered on March 23, 1982 (Gong1982, 464) (Gong1991, 2407)
Plaintiff-Appellee et al., Counsel for the plaintiff-appellant
Defendant-Appellee et al., Counsel for the defendant
Seoul High Court Decision 90Na34122 delivered on April 12, 1991
The appeal is dismissed.
The costs of appeal are assessed against the plaintiff.
1. Regarding ground of appeal No. 1
The court below's rejection of the plaintiff's assertion that the plaintiff and the defendant agreed to postpone the payment date of the remainder of this case is without merit.
2. Regarding ground of appeal No. 2
According to the reasoning of the judgment below, the plaintiff and the defendant, who is the agent of the non-party 1, obtained a certificate of personal seal impression for the above real estate on February 24, 1989, and issued a certificate of personal seal impression for 90 million won for the above real estate on the contract date, and the intermediate payment of 40 million won can be paid with the required documents for the transfer of ownership on August 30 of the same year. The provisional registration under the name of the non-party 2, which was completed part of the real estate of this case, was made before the intermediate payment was cancelled, and the above down payment was not paid on the day of the above contract date. The plaintiff, the plaintiff, the defendant, and the non-party 1, who did not pay the intermediate payment on June 14 of the same year because they did not have the above obligation to cancel the above provisional registration because they did not have the above obligation to purchase and sell the above real estate by the non-party 1, the plaintiff's wife and the above non-party 2, who did not have the above obligation to cancel the contract.
In light of the principle of good faith, the court below did not err as the theory of facts in the court below's finding of facts, and it is reasonable to see that the defendant provided the performance of one's own obligation even though it is not complete in light of the principle of good faith. On the other hand, the plaintiff's preparation of half of the intermediate payment and the remaining amount in the statement of shares per share cannot be deemed to have provided the performance of his own obligation. Therefore, it is reasonable to determine that the sales contract of this case was automatically cancelled according to the above agreement of June 14, 198 (see Supreme Court Decisions 87Da2739, 2740, Dec. 6, 198; 91Da13120, Aug. 23, 191; 8Da2891, Jul. 25, 1989).
3. Accordingly, the appeal shall be dismissed, and all costs of appeal shall be assessed against the plaintiff who has lost. It is so decided as per Disposition by the assent of all participating Justices.
Justices Kim Sang-won (Presiding Justice)