[1] The degree of a party's performance of its own obligation in a bilateral contract

[2] The case affirming the judgment of the court below that the seller shall not be exempted from liability due to delay in the return of the purchase price, on the ground that the buyer prepared all documents necessary for the registration of transfer of ownership and notified the seller to receive the transfer of ownership, and the seller shall complete the performance of his/her obligation, and the seller shall not be exempted from liability due to delay in the return of the purchase price after the above highest date

[1] Articles 460 and 536(1) of the Civil Act / [2] Articles 460, 536(1), and 544 of the Civil Act

[1] Supreme Court Decision 95Da40397 decided Dec. 22, 1995 (Gong1996Sang, 507), Supreme Court Decision 2001Da6053, 6060, 6077 decided May 8, 2001 (Gong2001Ha, 1356), Supreme Court Decision 2001Da36511 decided Dec. 11, 2001 (Gong2002Sang, 260)

Ansan-si and two others (Attorney Lee Jae-Gyeong, Counsel for the plaintiff-appellant)

Attorney Choi Jae-ho (Attorneys Choi Ho-ho et al., Counsel for the plaintiff-appellant)

Busan High Court Decision 2004Na11643 delivered on January 12, 2005

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. Basic facts

The court below found that part of the forest land of this case as indicated in the judgment of the plaintiffs from the defendant and the joint defendant Lee Jong-ok (hereinafter referred to as "the defendants for convenience") of the court below entered into a sales contract with the plaintiffs to purchase each of the forest land of this case on the date and time of its decision, 132 million won in the case of the plaintiff Lee Jong-sik, 120 million in the case of the plaintiff Lee Jong-sik, and 36 million in the case of the plaintiff Kim Jong-sung, and the total amount of each purchase price, and the payment for each of the purchase price was made, and each of the transfer registration was made, and since the development project of the forest of this case was not carried out, the plaintiffs requested the return of each of the above purchase price and cancelled each of the above sales contract between the plaintiffs and the defendants on August 18, 200, and "the defendants pay the principal of the purchase price to the plaintiffs by the end of February 2, 201, and the plaintiffs grant the registration of ownership to the defendants."

2. Determination on the grounds of appeal Nos. 1 and 2

Then, the court below held that the defendants are obligated to return each purchase price to the plaintiffs under the agreement of this case, i.e., the defendant's defense (i.e., the agreement of this case was limited to the suspension condition that the forest of this case was not designated and publicly announced as amusement park under the city planning at the end of February 198, 198, but was approved by the Minister of Construction and Transportation on July 2, 1997, before the Changwon city. Thus, the above suspension condition is not possible at the time of the agreement of this case, or ii) since the agreement of this case constitutes an expression of intent by mistake, fraud, or coercion, and thus, it was rejected on the grounds that there is no evidence to acknowledge this as to the defense that it was revoked. In light of the records, the judgment of the court below is just and acceptable, and there is no violation of the rules of evidence or misapprehension of legal principles as alleged in the grounds for appeal.

3. Judgment on the third ground for appeal

If a strict request for the performance of one party's own obligation in a bilateral contract is required, the degree of provision to be made by the other party may be determined reasonably so as not to violate the principle of trust and good faith depending on the time and specific circumstances. In a case where the other party fails to prepare for the receipt of a document for registration of transfer of ownership, such as failure to pay the balance while taking a non-cooperative attitude in performing the contract, the seller is also sufficient to prepare for the corresponding performance (see Supreme Court Decision 2001Da36511, Dec. 11, 2001).

In light of the above legal principles and the records, the court below held that the defendants did not refund the purchase price even after the end of February 4, 2001, which is the execution date stipulated in the agreement of this case, and the plaintiffs filed a lawsuit of this case seeking the refund of the purchase price on April 9, 2003. The defendants consistently stated in the court of first instance and the court below that they clearly stated their intent to refund the purchase price and to refuse to accept the transfer registration procedure by asserting the invalidity or cancellation of the agreement of this case. After the decision of the court of first instance (as to the defendants, the court of first instance issued an order to return the purchase price at the same time with the plaintiffs' transfer registration procedure, and issued a provisional execution on August 4, 2004. The plaintiff Kim Jong-hwan obtained a certificate of personal seal impression for sale of each real estate on the 5th of the same month, and that the defendants did not receive the above documents from the court of first instance to the above 10th of the same month, and did not accept the above documents related to the above plaintiffs' transfer registration.

4. Conclusion

Therefore, the appeal is 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.

Justices Yang Sung-tae (Presiding Justice)