A

1. As to the Defendant’s ground of appeal

After comprehensively taking account of the adopted evidence, the lower court acknowledged the circumstances as indicated in its reasoning, and determined that the Defendant granted a comprehensive power of representation, etc. to the broker delegated by C or C regarding the disposal of the instant ownership to another person, and that the Plaintiff purchased the instant ownership from the Defendant through the broker granted the said power of representation, etc.

Furthermore, the lower court determined that, if the Defendant paid the sales price in full at its own expense and acquired the ownership of the instant apartment, barring any special circumstance, the Defendant is obligated to implement the procedure for the registration of ownership transfer for the instant apartment, barring any special circumstance. Examining the records in light of the relevant legal principles, the lower court’s aforementioned determination is just and acceptable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles regarding interpretation of legal nature or title trust, or by failing to exhaust all necessary deliberations.

2. Plaintiff’s ground of appeal

A. Examining the record in light of the relevant legal principles as to No. 1 of the ground of appeal, the lower court is justifiable to have determined that the Defendant’s obligation to transfer ownership and the Plaintiff’s obligation to pay the purchase price to the apartment of the instant apartment is the same as the simultaneous performance. In so doing, the lower court did not err by misapprehending the legal doctrine

B. If the seller fails to cancel the registration of the establishment of a neighboring mortgage on the subject matter of sale, for which the seller is obligated to cancel, the buyer may refuse to pay the purchase price to the extent of risk. Furthermore, the buyer may seek against the seller to implement the registration of ownership transfer at the same time with the payment of the remainder after deducting the secured obligation from the purchase price. The purchase price that the seller may refuse to pay is limited to the amount where the secured obligation of the right to collateral security is confirmed (see Supreme Court Decision 2009Da73608, Apr. 28, 2011).

According to the records, the plaintiff asserted that "as to the simultaneous performance defense of the defendant in the preparatory document dated October 7, 2014 stated on the third day for pleading of the court below, the right to collateral security was established on the apartment of this case, and an order to register the ownership transfer with the payment of the purchase price in return for the payment of the purchase price without the settlement procedure is unjust." The purport of the claim is that "the order to register the ownership transfer with the payment of the purchase price is unjust." The defendant, who is the seller, is entitled to receive the remainder after deducting the secured debt amount, etc. of the above collateral security from the purchase price, and at the same time,

If so, the court below should have judged the scope of simultaneous performance by examining whether the plaintiff can refuse the payment of the purchase price in accordance with the above legal principles, and if so, it should have judged the scope of simultaneous performance. However, the court below determined that the plaintiff's obligation to transfer ownership to the full amount of the unpaid purchase price was concurrently performed without making any determination as to the above argument. Ultimately, the court below erred by failing to exhaust all necessary deliberations by misapprehending the legal principles on the right to refuse the buyer's payment, thereby affecting the conclusion of the judgment. The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young

Justices Kim Jae-han

Chief Justice Kim Jong-il