[건물명도등][공1990.4.15.(870),765]
(a) The case where the expression was erroneous by mistake in making a defense of simultaneous performance, but the court has recognized it; and
(b) The claim on the grounds for destroying the right that the down payment was confiscated pursuant to the forfeiture provision; and
A. Where a real estate sale contract is rescinded, the obligation to cancel provisional registration in the name of the buyer and the obligation to return the down payment in the name of the seller completed as part of the buyer’s contract performance are in the simultaneous performance relationship. Thus, it is justifiable to order the cancellation of provisional registration in accordance with the defense of simultaneous performance where it is obvious that the Defendant’s attorney is an error in the claim for cancellation of the registration, even if he/she could not respond to the Plaintiff’s claim before he/she was returned the down payment paid to the Plaintiff.
B. Even in the case where the buyer's failure to perform the contractual terms in the sales contract provides that the seller can not raise an objection even if the seller unilaterally cancels the contract and the paid contract deposit shall be owned by the seller, the reason for nullifyinging the right that the contract deposit was confiscated as a penalty pursuant to the above agreement is
A. Article 536 of the Civil Act: Article 565 of the Civil Act; Article 188 of the Civil Procedure Act
Lee Jong-soo et al., Counsel for the plaintiff-appellant Kim Jong-ok et al.
Attorneys Park Young-chul et al., Counsel for the plaintiff-appellant
Busan District Court Decision 88Na10586 delivered on June 9, 1989
Each appeal shall be dismissed.
The costs of appeal shall be assessed against each appellant.
1. We examine the plaintiffs' attorney's grounds of appeal.
According to the reasoning of the judgment below, the court below held that the sales contract of this case concluded between the plaintiff and the defendant was lawfully cancelled on May 24, 1989 due to the delay of the defendant's remaining payment, and therefore, the defendant is obligated to restore the plaintiffs to its original state, and to cancel provisional registration in the name of the defendant, which is completed as part of the above contract execution, and the plaintiffs also have the obligation to return the down payment amount of KRW 7,00,000 received from the defendant due to restitution, and the obligation of cancellation of the above provisional registration is deemed to be in the simultaneous performance relationship,
Even if the defendant's obligation to cancel provisional registration and the plaintiff's contract deposit are in simultaneous performance relations, the court cannot determine them unless there is any defense of such simultaneous performance relations. However, according to the records, it is recognized that the defendant's attorney at the first instance court's sixth pleading date ( September 14:00, 198) recognized that the defendant's representative could not respond to the plaintiff's claim before he was returned the down payment that the defendant paid to the plaintiff, and the title of the building is obvious that the claim for cancellation of provisional registration is an error in the claim for cancellation of provisional registration, and therefore, the judgment below ordering the cancellation of the provisional registration as a repayment of the down payment in accordance with the simultaneous performance claim is justifiable, and there is no violation of the rules of evidence, such as the theory of lawsuit, which
In addition, Article 7 of the theory of lawsuit (Evidence A4) provides that when the buyer fails to perform the contractual terms, he/she cannot raise an objection even if the seller unilaterally cancels the contract, and the contract deposit shall be owned by the seller. However, the reason for the so-called extinguishment of the right, which was forfeited as the penalty for breach of contract pursuant to the above agreement, is that the seller has a defense liability against the plaintiff, who is the seller. However, even after examining the record, there is no trace of submitting the defense of the rescission of contract, so the court below did not decide whether to accept the contract deposit, and there is no error of law by misunderstanding the legal principles as to the penalty such as the theory of lawsuit. This point is without merit.
2. We examine the grounds of appeal by the defendant's attorney.
In light of the records, the court below notified the plaintiffs that they will prepare for the remainder of the contract to provide the documents required for ownership transfer registration after the expiration of the payment period of the remainder of the contract of this case as at the time of original adjudication, and found the defendant with the above documents. However, it is just that the defendant unilaterally did not deliver the documents to the defendant, and there is no violation of the rules of evidence such as the theory of lawsuit, and there is no violation of the rules of evidence such as the theory of lawsuit in the process of evidence preparation. In addition, as in the theory of lawsuit, if the plaintiffs filed a lawsuit seeking the payment of the remainder of the contract and received the winning decision, the contract cannot be rescinded on the ground of the non-performance of the obligation of the remainder of the contract. Therefore,
3. Therefore, both appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)