B. Whether the termination of a sales contract without a reinstatement agreement constitutes an empirical precedent

B. Although it is not necessarily required to conclude an agreement on restitution at the time of termination of the contract, it is an example in light of the empirical rule to cancel the contract without any agreement on the return of the down payment and intermediate payment already paid and the amount of damages in the event that the contract is terminated by agreement.

(1) Summary of the reasoning of the judgment below

The court below, on April 15, 198, dismissed the sale contract between the defendants on the same date and the above defendant Bosung Corporation (hereinafter "the above defendant company"), and 1/2 shares in the real estate listed in the attached list 1, 2, and 4,500 shares in the defendant company owned by the defendant 2, and 360,000 won in exchange for documents necessary for the registration of transfer of ownership and payment of 160,000,000 won in 20,000 won in 160,000 won in 20,000,000 won in 20,000 won in 1,50,000 won in 20,000 won in 1,000,000 won in 20,000 won in 20,000 won in 20,000 won in 3,000,000 won in 20,000 won in 16,000,0.

(2) The term “a contract cancellation or termination” means a new contract, regardless of whether the contract is rescinded or not, which provides that both parties to the contract shall terminate the validity of the existing contract by agreement and return it to the same state as that of the previous contract had not been concluded from the original date. In order to cancel the contract, the requirement is that the opposite expression of intent, such as subscription and acceptance of the contract, would be consistent (agreement). In order to establish such an agreement, the content of the intent expressed by both parties should objectively coincide with the expression of intent expressed by both parties. Of course, in the event that the contract is rescinded, it does not necessarily require an agreement on restoration at the time of termination of the contract. However, in the event that the contract is terminated by agreement, it is deemed that only the contract is rescinded without any agreement on the return of the down payment, the intermediate payment and the compensation for damages already paid falls under this case in light of our empirical rule (see Supreme Court Decision 92Da4130, 4147, Jun. 23, 1992

Examining the reasoning of the relevant evidence adopted by the court below in light of the record, the plaintiff presented new conditions of five paragraphs, such as prior settlement of the defendant company's existing obligation, which was not at issue at the time of the initial purchase and sale contract, to the defendants after the payment date of the above balance, and declared that the plaintiff's share was at the time when the defendants failed to comply with the above requirements, and thus, it cannot be paid any balance as the plaintiff cannot be viewed as a partnership, and thus, it seems that the plaintiff at the time performed the above sale and sale contract, which would substantially start a partnership with the defendant 2 with the execution of the above new terms and conditions to account for more favorable status as a result of the plaintiff's actual commencement of a partnership relationship with the defendant 2. In addition, if such requirements are not fulfilled, it does not appear that the contract will no longer continue to be effective. In addition, it is general that the plaintiff's expression of specific intent on the down payment, the return of the intermediate payment and the compensation for damages already paid to the defendants, and it cannot be viewed that the plaintiff did not immediately refer to the above terms and conditions of the above contract.

Therefore, the fact that the Defendants refused the above demand of the Plaintiff and notified the Plaintiff that they would return KRW 240,00,000 to the above purchase price and damages already received from the end of November of the same month from the end of the same month cannot be viewed as an offer for a new rescission contract, and thus, the above sales contract cannot be deemed as having been lawfully rescinded between the Plaintiff and the Defendants. Meanwhile, in light of the fact that the dispute over the restoration of the original state and the amount of damages at the time of termination of the contract between the Plaintiff and the Defendants on the record, it cannot be deemed that the Plaintiff consented to the offer for the said new rescission contract by the Defendants.

Nevertheless, the court below judged that the above facts of recognition alone constituted a lawful rescission of the contract between the plaintiff and the defendants around May 25 of the same year. Thus, the court below did not err in the misapprehension of legal principles as to the offer and acceptance of a rescission contract, or in the interpretation of a juristic act, and it is clear that such illegality has affected the conclusion of the judgment. Thus, there is a reason to point this out.

(3) Therefore, the lower judgment is reversed and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Don-hee (Presiding Justice)