[계약금반환][공1977.10.15.(570),10293]
In cancelling a lease contract for reasons that the registration of establishment of chonsegwon has become impossible, a copy of the provision of performance of the lease on a deposit basis shall be required.
Where a lease contract has been concluded with respect to any real estate already transferred to another person for which the transfer registration of ownership has been made, if the settlor of chonsegwon cancels the lease contract on the ground that the obligation under the lease contract is impossible to perform, even if the obligation to pay the remainder of the lease deposit is in the simultaneous performance relationship, it is not necessary to offer such performance.
Article 546 of the Civil Act
Plaintiff (Attorney Kim Young-young, Counsel for the plaintiff-appellant)
Defendant
Busan District Court Decision 76Na357 delivered on May 6, 197
The appeal is dismissed.
The costs of appeal shall be borne by the defendant.
The lower court acknowledged the fact that the Defendant concluded a lease contract with the Plaintiff on August 29, 1975 for the deposit money of KRW 1,00,000 for the deposit money for the lease on a deposit basis with the Plaintiff for a one-year period of KRW 1,00,000 for the lease on a deposit basis, and that the remainder is paid by September 30 of the same year to the Plaintiff at the same time as the execution of the procedures for establishment of the lease on a deposit basis or provisional registration of the lease on a deposit basis, and that there is no dispute between the parties, and that the instant building was disposed of from the Defendant to Nonparty 1 on August 18, 1975 for the lease on a deposit basis and completed the registration of transfer from the Defendant to that Nonparty 2 on the ground that it is impossible to implement the procedures for registration of establishment of lease on a deposit basis or provisional registration, and that the said lease
In full view of the evidence admitted by the court below (in particular, Non-party 2's testimony) and the purport of the pleading in the record, it is sufficient to see that the defendant's obligation to perform the procedure for establishing a right to lease on a deposit basis or provisional registration on a deposit basis was impossible due to the due date. Thus, the court below's decision that the above lease contract was cancelled due to the defendant's impossibility of performing his obligation can be justified, and there is no error in violation of the rules of evidence or other illegal acts. Thus, in this case, although the defendant entered into a lease contract on the real estate which the defendant transferred to another person for the reason of non-performance, it is reasonable that the plaintiff's obligation to pay the remainder of the lease on a deposit basis as the other party's obligation to perform the procedure for performing the registration, even if the defendant's obligation to pay the remainder of the lease on a deposit basis exists simultaneously with the defendant's obligation to pay the remainder of the lease on a deposit basis, it is not sufficient to provide the plaintiff's obligation to pay the remainder.
Therefore, this appeal is dismissed in accordance with the provisions of the Civil Procedure Act 400, 395, and 384(1). The burden of litigation costs is governed by Articles 95 and 89 of the same Act, and is so decided as per Disposition by the assent of all participating judges.
Justices Min Jae-chul (Presiding Justice)