[2] The case reversing the judgment of the court below which did not apply Article 21-3 of the former Act on Special Measures for the Disposal of Property Belonging to the State, on whether the sales contract was rescinded due to the non-payment of purchase price for the property devolving to the State

[2] The case reversing the judgment of the court below which did not apply Article 21-3 of the former Act on Special Measures for the Disposal of Property Belonging to the State, on whether the sales contract was rescinded due to the non-payment of the purchase price for the property devolving upon the State

1. According to the reasoning of the judgment below, the findings of fact and the summary of judgment of the court below are as follows.

A. On January 8, 1942, Dongjak-gu Seoul Metropolitan Government 134-184 (hereinafter referred to as "the first real estate of this case") and 134-4-134-2 (hereinafter referred to as "the second real estate of this case") were owned by the land of this case 134-134 (hereinafter referred to as "the land belonging to this case"), which was originally owned by the non-party 1, Japan. The non-party 1 Co., Ltd. (hereinafter referred to as "the non-party 1") decided to purchase the land of this case from the non-party 1, the non-party 1, the non-party 2, the non-party 3, the registration of transfer of the ownership of the non-party 1, the non-party 2, the non-party 3, the registration of transfer of the ownership of the non-party 9-1, the non-party 3, the non-party 1, the registration of transfer of the ownership of the land of this case, and the non-party 1, the non-party 3.

On the other hand, the defendant, on September 28, 1961, at the time of managing the above 1 and 2 real estate as property devolving upon the defendant 1 and 2, on September 28, 1961, on the 740,000 exchange of the above 1 real estate, on the 90,000 annual installments, each of the two real estate was paid on 90,000 annual installments for 3 years (However, the purchaser's name as to the 1 real estate of this case was 7,00,000 won for 96,00 won for 196,00 won for 96,00 won for 196,00 won for 20,000 won for the remaining 9,00 won for 196,00 won for 20,000 won for 96,00 won for 9,000 won for 19,000 won for 20,000 won for new real estate of this case.

B. After recognizing the above facts, the lower court rejected the Defendant’s defense that both the said renewed sales contract and sales contract were rescinded due to the buyer’s failure to pay the purchase price, and accepted the Plaintiffs’ claim.

Article 8 of the Act on Special Measures for the Disposal of Property Belonging to the State at the time of the renewal sales contract and the sales contract of this case provides that where a sales contract was concluded before November 20, 1963 and the payment period for installment payments comes after November 20, 1963, the contract shall be deemed to have been cancelled at the expiration of six months after the expiration of the payment period; and that where the plaintiff and his new name were to pay the installment twice after the payment period on December 29, 1963 and September 15, 1963, the payment for installment payments was deposited on May 26, 195; however, "when the purchaser fails to pay the installment payments for the proceeds of sale of property belonging to the State" under Article 8 of the same Act refers to the time when the purchaser is liable for the installment payments, and where a purchaser claims his right to the object of this case, the purchaser's refusal to pay the whole or part of the amount can be interpreted to the extent that it does not lose its right.

On the other hand, the plaintiff and the defendant were engaged in activities by establishing and operating the committee on the recovery of land of this case in order to withhold the payment of the purchase price of each of the real estate of this case through the lawsuit and to assist the defendant in implementing the renewal sales contract and the sales contract by asserting that the non-party company was the ownership of each of the real estate at the time of the payment period for the above installment, and first, the plaintiff and the defendant did not pay the purchase price of the real estate of this case by the plaintiff and the defendant for the execution of the procedure for the registration of transfer of ownership of this case when it was confirmed to be owned by the defendant only after October 22, 1993 through complex litigation relations, and they filed a lawsuit claiming the execution of the procedure for the registration of transfer of ownership of this case and deposited the payment in installments. Thus, it cannot be deemed that the payment of the purchase price of the real estate of this case was based on their legitimate right to refuse payment, and therefore, the plaintiff and the defendant's defense, based on the premise that the above renewal sales contract and the sales contract was cancelled by the defendant.

2. As to the grounds of appeal Nos. 1 and 2

Article 8 subparagraph 1 of the Act on Special Measures for the Disposal of Property Belonging to the State, enacted by Act No. 1346 of May 29, 1963, where a sales contract or a lease contract was concluded prior to the enforcement of this Act, and the payment period for installment payments of the proceeds from sale or rent arrives after the enforcement of this Act, the contract shall be cancelled at the expiration of three months after such payment period; and Article 6 or 8 of the Act on Special Measures for the Disposal of Property Belonging to the State, amended by Act No. 1674 of December 31, 1964, provides that "If the sales contract was cancelled or terminated by December 31, 1964, it shall be deemed that the contract was not cancelled, notwithstanding Article 6 or 8, for a person whose property was purchased by public sale or purchase pursuant to Article 9 (1) through (5), or for a person whose property was purchased by a contract for recovery after the expiration of 16th of 196."

Article 21-3 of the amended Property Management Act provides that if the purchaser of the property devolving upon the State fails to pay the purchase price in installments not later than the date prescribed by the above amended Act, regardless of whether there is a cause attributable to the purchaser of the property devolving upon the State, the sale contract for the property devolving upon the State shall be deemed to have been naturally rescinded. According to the facts established by the court below, at the time of conclusion of the renewed sale contract as of December 31, 1962 between the Plaintiff and the Defendant, the Plaintiff paid the remaining purchase price of KRW 34,60,00 for the original purchase price of KRW 96,00,000 for KRW 29,00 for KRW 96,00 for KRW 39,00,000,000 for KRW 29,000 for KRW 19,70 for the remaining 9,000,000 for KRW 96,000 for each of the above new sale contract for the property devolving upon the State.

Nevertheless, the court below erred in applying only Article 8 of the Act on Special Measures for the Disposal of Property Belonging to the Contract for the Renewal of this case and the Contract for the Sale of Property, and without applying Article 21-3 of the amended Act as mentioned above (see Supreme Court Decisions 67Da2078, Feb. 20, 1968; 68Da849, Jul. 2, 1968); and it is clear that such illegality has influenced the conclusion of the judgment. The grounds of appeal assigning this error are with merit.

4. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be 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.

Justices Park Jong-chul (Presiding Justice)