[2] In a case where a real estate purchaser agreed to take over a debt on the subject matter of sale and deduct the debt from the purchase price, whether the purchaser fulfilled his/her obligation to pay the balance after deducting the debt from the purchase price (affirmative)

1. Regarding ground of appeal No. 1

Any person who intends to cancel a contract on the ground of the other party's non-performance in a bilateral contract with a simultaneous performance relationship shall provide the other party with the performance of his/her obligation. When the other party's act is required in the performance of his/her obligation, he/she shall complete the preparation to perform at any time, notify the other party of his/her intention so that he/she may cause the other party to delay of performance only if he/she has notified the other party of his/her receipt, and the preparation for performance shall not be limited to the mere preparation for performance (see, e.g., Supreme Court Decisions 69Da123, 1224, Apr. 14, 197; 85Meu2197, Jan. 20, 197).

In light of the above legal principles and records, the court below acknowledged facts as stated in its judgment, and held that the obligation of the plaintiff (Counterclaim defendant; hereinafter "the plaintiff") to pay the remainder of the obligation of the defendant (Counterclaim plaintiff; hereinafter "the plaintiff") is concurrently performed with the obligation of the defendant (Counterclaim plaintiff; hereinafter "the plaintiff") to transfer ownership, and there is no evidence to deem that the plaintiff paid the remainder of KRW 30 million to the defendant, and thus, the defendant's obligation to transfer ownership cannot be deemed as delayed performance. There is no error in the misapprehension of legal principles as argued in the Grounds for

2. Regarding ground of appeal No. 2

As long as the authenticity of a disposal document is recognized, the court shall recognize the existence and content of the expression of intent in accordance with the contents of the document unless there is any reflective proof, and shall not reject it without any reasonable explanation. However, even in the case of a disposal document where there is an express or implied agreement different from the contents of the document, if it is acknowledged that there is a fact different from the contents of the written agreement, it may recognize facts that are different from the contents of the written agreement. In interpreting the legal act of the originator, it may be freely determined as a documentary evidence insofar as it does not violate the empirical and logical rules (see Supreme Court Decision 2005Da34643, Apr. 13,

In light of the above legal principles and records, the court below acknowledged the facts as stated in its judgment, and determined that Article 2 of the Real Estate Sales Contract of this case determined the time to deliver a singing room to the plaintiff after completing the procedure for transferring the authorization and permission necessary for the singinging of the building of this case, and therefore it is difficult to see that the defendant has a contractual obligation to cooperate with the defendant in the procedure for transferring the right, such as the authorization and permission necessary for the operation of the plaintiff (mutual omission) sign, is just and acceptable, and there is no error of law such as misconception of facts against the rules of evidence or misunderstanding of legal principles as argued in the

3. As to the third ground for appeal

In a case where the purchaser of a real estate agrees to take over the secured debt, provisional attachment debt, and the obligation to return a lease deposit with respect to the subject matter of sale and to deduct the amount of such obligation from the purchase price, barring any special circumstance, the purchaser is liable to pay the remainder after deducting the said obligation from the purchase price (see Supreme Court Decision 92Da23193, Feb. 12, 1993, etc.).

According to the facts and records acknowledged by the court below and the court of first instance, when the plaintiff purchases the real estate of this case from the defendant, 370,000,000 won for the purchase price, 30,000,000 won for the intermediate payment, and 290,000,000 won for the intermediate payment. 220,000,000 won for the intermediate payment is substituted by the defendant's acceptance of the secured debt of the right to collateral security (hereinafter "liability of loans of Daegu Bank") established against the Daegu Bank with respect to the building of this case (hereinafter "Tgu Bank"), the remaining 70,000,000 won shall be paid on June 20, 200; 50,000 won for the remainder 50,000,000 won for the above interest payment on September 20, 200 for the lessee; and 200,000,0000,000 won for the intermediate payment to the defendant.

Examining these facts in light of the legal principles as seen earlier, the lease guarantee amount of No. 50,000,000 won (mutual omission) to be deducted from the above sale balance to the Defendant is not 7,500,000 won, but 20,000 won. Accordingly, the remainder that the Plaintiff actually pays to the Defendant shall be the remainder of 30,000,000 won.

Nevertheless, the court below judged that the remainder that the plaintiff should pay to the defendant is KRW 7,500,000,000, which shall be deducted from the above balance of the purchase and sale (mutual omission). Therefore, the court below held that the remainder that the plaintiff should pay to the defendant is KRW 42,50,000, and accepted the defendant's counterclaim within the scope of the scope of the defendant's counterclaim. Thus, the court below erred in the misapprehension of legal principles as to the calculation of the balance of real estate purchase and sale, or in the misapprehension of the rules of evidence

4. Conclusion

Therefore, the part of the lower judgment against the Plaintiff regarding the counterclaim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)