[1] Whether the exercise of the right to claim the purchase price held by the first seller against the intermediate buyer is restricted if there is an agreement on the intermediate omission registration (negative)

[2] The case holding that in case where a sales contract was concluded in sequential order between the first seller and the middle buyer and the last buyer, and an agreement was reached between them to increase the purchase price, the first seller and the middle buyer may refuse to perform the obligation to transfer ownership in the name of the last buyer on the ground that the increased purchase price was not paid

[1] The agreement on the intermediate omission registration is merely an agreement between the parties that the first seller should complete the registration of ownership transfer from the final buyer on the premise that each sales contract is effective in the event that the real estate was sold entirely, and thus, it does not restrict the exercise of the right to claim the purchase price held by the first seller against the intermediate buyer who is the buyer under the sales contract he/she became a party, on the ground that such agreement exists.

[2] The case holding that in case where a sales contract was concluded in sequential order between the first seller and the middle buyer and the last buyer, and an agreement was reached between them to increase the purchase price, the first seller and the middle buyer may refuse to perform the obligation to transfer ownership in the name of the last buyer on the ground that the increased purchase price was not paid

[1] Articles 186 and 568 of the Civil Act / [2] Articles 186 and 568 of the Civil Act

[1] Supreme Court Decision 78Da2446 delivered on February 27, 1979 (Gong1979, 11857), Supreme Court Decision 79Da932 delivered on May 13, 1980 (Gong1980, 12849), Supreme Court Decision 91Da18316 delivered on December 13, 1991 (Gong1992, 505), Supreme Court Decision 96Da3982 delivered on June 28, 1996 (Gong196Ha, 2344), Supreme Court Decision 97Da3218 delivered on November 11, 197 (Gong197Ha, 3767)

Plaintiff (Law Firm Sami General Law Office, Attorney Kim Young-soo, Counsel for the plaintiff-appellant)

Defendant 1 and two others (Law Firm Rate, Attorneys Shin Sung-sung et al., Counsel for the defendant-appellant)

Supreme Court Decision 2000Da69200 Delivered on June 14, 2002

Seoul District Court Decision 2002Na37763 Delivered on November 13, 2003

The part of the lower judgment against the Defendants is reversed, and that part of the case is remanded to the Seoul Central District Court Panel Division. The Plaintiff’s appeal is dismissed.

1. Judgment on the Plaintiff’s appeal

The court below rejected the plaintiff's assertion that the defendants granted the right of representation to the non-party regarding the disposal of the land of this case or granted the non-party's right to make a special disposition that belongs to the defendants immediately. In light of the records, the court below's aforementioned evidence preparation, fact-finding and decision are acceptable. In light of the records, there are no errors in the misapprehension of legal principles as to facts against the rules of evidence, the contents and scope of the right of representation, the fact-finding and decision of the court below, and the omission of judgment

The Supreme Court Decision 98Da14818, 14825 Decided December 24, 1999 delivered on the grounds of appeal is not appropriate to invoke the case differently from this case.

2. Judgment on the defendants' appeal

A. The judgment of the court below

In full view of the admitted evidence, the court below determined that there was an agreement between the defendants and the non-party company and the plaintiff on the middle omission registration to grant the registration of transfer of ownership to the non-party company by omitting the registration of transfer of ownership in the name of the non-party company and the plaintiff pursuant to the sale contract of this case (trade) concluded between the non-party company and the plaintiff, based on the following circumstances: (a) the conclusion of each of the above sales contract; (b) the agreement between the defendants and the non-party company on the purpose of purchase and the special agreement on the purchaser's indication and purpose of purchase under the sales contract; and (c) the process of completing the transfer of ownership on the remaining land except the land of this case.

Furthermore, the court below, based on the admitted evidence, prepared a document of payment that the Defendants received only the down payment of KRW 34,00,000 from the non-party company, without receiving any more than the down payment of the above sales contract, and issued it to the non-party company at a price higher than that of KRW 356,010, which is the initial contract price. Accordingly, the non-party company raised the purchase price of the land between the Plaintiff and the Defendants on November 18, 1996, which is after receiving the full payment of the purchase price under the Plaintiff’s sales contract, from the Plaintiff, and paid the purchase price up to the 30th of the same month. If the Defendants were unable to pay the purchase price, and issued a written confirmation that the Defendants would be liable for all civil and criminal responsibilities, but the non-party company acknowledged that the above Defendants were not paid to the non-party company after November 30, 1996, and then rejected the Defendants’ claim for partial increase in the sales contract and its defense against the non-party company.

B. Judgment of the Supreme Court

(1) In light of the records, we affirm the judgment of the court below that it is reasonable to consider that there was an agreement between the defendants, the non-party company, and the plaintiff on the intermediate omission registration of the land of this case, based on the comprehensive review of the adopted evidence, and there is no error of law such as misconception of facts due to violation of the rules of evidence, as

(2) However, it is difficult to accept the lower court’s decision that partially rejected the Defendants’ defense of simultaneous performance and received the Plaintiff’s claim for the following reasons.

In light of the above legal principles, the agreement of interim omission registration is merely merely a mutual agreement between the parties that the first seller would have to make the registration of ownership transfer from the final buyer for the convenience of performance, on the premise that each contract is effective in a case where real estate was sold before the sale before the sale. Thus, such agreement does not restrict the exercise of the first seller's right to claim the purchase price held by the intermediary who is the buyer under the sales contract he/she became a party (see Supreme Court Decisions 78Da2446, Feb. 27, 1979; 79Da932, May 13, 1980; 96Da3982, Jun. 28, 1996, etc.). Thus, the defendants who registered their ownership in their name with respect to the land in this case had the right to claim the payment of the increased purchase price under the name of the non-party company, as well as the right to claim the simultaneous performance of the sale price after the said increase in the sale price did not affect the conclusion of the agreement.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendants, the part of the judgment below against the Defendants is reversed and remanded to the court below for further proceedings consistent with this Opinion. The Plaintiff’s appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jack-dam (Presiding Justice)