[소유권이전등기청구사건][고집1976민(1),136]
The requirements for the cancellation of a contract pursuant to the agreement to the effect that the contract is automatically rescinded in the event that the buyer's obligation is not fulfilled.
In order for a seller to cancel a contract according to an agreement under which the buyer’s obligation to pay the purchase-price is automatically rescinded when the contract is due, the seller shall offer his obligation to the buyer during the due date.
Article 544 of the Civil Act
Supreme Court Decision 4285No. 4721 delivered on October 30, 1952 (Supreme Court Decision 4721 delivered on October 30, 195, Decision No. 544(2)446 of the Civil Act)
Plaintiff
Defendant
Seoul Central District Court (72 Gohap3597) in the first instance trial
1. Revocation of the original judgment;
2. The defendant shall receive gold KRW 7,092,910 from the plaintiff and shall implement the procedure for the registration of ownership transfer on October 5, 1968 with respect to the land listed in the attached list.
3. The plaintiff's main claim is dismissed.
4. All the costs of lawsuit shall be divided into three parts of the first and second instances, and one of them shall be borne by the plaintiff and the other by the defendant.
The plaintiff's attorney shall cancel the original judgment at his principal claim. The defendant shall cancel the original judgment at Suwon-si's 19: 49: 20: 3: 41: 3: 10: 232: 10: 10-24 of the same 10-24: 24: 10-24 of the same 10-24; 200 - 1: 200 - 1, 200 - 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 1, 28 - - 5, 1, 1, 1, 32 - - 11 of the same 10 - 322 - and 10 -,24 - and 684; and the defendant's decision shall be accepted the plaintiff's ownership transfer registration at his own expense, excluding the plaintiff's ownership from 10-208.36.6
1. Determination on a State Claim;
In light of the following facts: (a) No. 1 to No. 5 of the dispute over the purchase price; (b) No. 1 to No. 2 of the above No. 1 to No. 3 (Gain Book); (c) No. 1 to No. 3 of the above No. 3 (Gain Book); (d) No. 1 to 8 of the above-mentioned No. 1 to 4 of the above-mentioned No. 1 to 6 of the above-mentioned No. 77 of the above-mentioned No. 1 to 8 of the above-mentioned No. 1 to 5 of the above-mentioned No. 77 of the above-mentioned No. 1 to 6 of the above-mentioned No. 1 to 30 of the above-mentioned No. 1 to 6 of the above-mentioned No. 1 to 30 of the above-mentioned No. 1 to 5 of the above-mentioned land; and (e) no more than 1 to 20 of the above-mentioned No. 24 of the above-mentioned No.
However, the plaintiff's legal representative asserts that the purchase price of the above 19th 49 square meters is 7,545,750 won for the above 10th 19th 49 square meters for the defendant's sole ownership during the purchase price, and that the above 10-24th 32 square meters for the above 10th 30 square meters for the above 30th 7,640,00 won for the above 4th 10th 6th 6th 6th 6th 6th 7,00 for the above 30th 6th 6th 6th 6th 6th 6th 7, for the plaintiff's sole ownership transfer registration for the above 4th 4th 6th 6th 6th 6th 7, for the above 30th 6th 6th 6th 6th 6th 7, for the plaintiff's joint ownership transfer registration for the above 4th 6th 30th 6th 6th 60.
2. Judgment on the ancillary claim:
The plaintiff's legal representative agreed not to assume the duty of ownership transfer registration for the part of the building of this case. If the purchase price of this case is all of the purchase price for the land, the defendant is obligated to receive the remaining amount that has not yet been paid by the plaintiff and to complete the registration of ownership transfer even for the above part of the land. Of the above 15,00,000 won, the plaintiff already paid 7,558,000 won to the defendant, and the above 10-32 of oldcheon-dong 10 is about 30,00 as above, not the defendant's sole ownership, and the defendant's share was 3/11 of the above price for the above land. Thus, the plaintiff's claim for the above 9-7,092,910 won for the above part of the purchase price was not accepted from the plaintiff and the part of the above 9-7,000 won for the above 9-10,000 won for the above part of the sale price to be paid to the defendant. Thus, the plaintiff's claim that the above 9-10-15, as to be paid for the above part of the remainder.
However, according to the purport of testimony and pleadings by Nonparty 1, 2 as to the above non-party 1 and the non-party 3's premise that the non-party 2's subscription price for the above non-party 3's non-party 3's non-party 9's non-performance of the above non-party 9's non-party 9's non-performance of the above non-party 9's non-party 9's non-performance of the above non-party 1's non-party 9's non-performance of the above non-party 9's non-party 9's non-performance of the above non-party 9's non-party 1's non-party 2's non-performance of the above non-party 9's non-party 1's non-performance of the above non-party 3's non-party 9's non-performance of the above non-party 1's non-party 1's non-performance of the above non-party 9's share.
Although the defendant is a person who received gold KRW 7,58,00 from the plaintiff as part of the purchase price of this case on the fourth date for pleading of the court below, the defendant asserted that the confession was revoked because it was against the truth, but then, the defendant's statement about the amount of the above received amount is also about KRW 7,078,00 (the fifth date for pleading of the court below), or about KRW 7,378,00 (the fifth date for pleading of the court below), or about KRW 7,378,000 (the statement of the court below 10th date for pleading of the court below). In light of the fact that there is no consistency in the statement itself and its credibility, it is insufficient to recognize that the confession of the first instance merely by the witness of the court below was made against the truth, and there is no other evidence to acknowledge it otherwise, and even if there is no dispute over the establishment, the plaintiff can not be revoked with the above amount of KRW 705,705,00,00.
Therefore, the plaintiff's main claim is dismissed without merit, and the conjunctive claim is justified. Accordingly, the original judgment which has different conclusions is unfair, and the plaintiff's appeal against it is with merit, so the original judgment is revoked, and the defendant shall be ordered to perform the procedure of registration of ownership transfer as stated in the Disposition No. 2, and the costs of lawsuit shall be three minutes, and the plaintiff's and the remainder shall be borne by the defendant, and it is so decided as per Disposition.
[Attachment List of Real Estate]
Judges Kim Hong (Presiding Judge)