Cases in which no judgment on simultaneous performance defense has been made;

Since a person who purchased a state bond holds the state bond and is able to receive a redemption of the lap payment at the redemption date, the plaintiff purchased a state bond on behalf of the plaintiff and intends to receive a substitute payment from the defendant, the plaintiff shall deliver the state bond to the defendant, and both obligations shall be deemed to be in a simultaneous performance relationship. Thus, the defendant's assertion that the plaintiff's claim for the payment of the state bond cannot be paid without the delivery of the state bond. Therefore, the defendant's argument is erroneous in failing to deliberate and decide on it even though it was the purport of the defense for simultaneous performance.

Article 536 of the Civil Act

Plaintiff

Defendant (Attorney Lee Jong-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 64Na665 delivered on March 10, 1965

Of the original judgment, the part ordering the payment of 65,418 won in the amount of taxes and national bonds at least 50 won is reversed;

The case portion is remanded to the Seoul High Court.

The defendant's remaining appeals are dismissed.

Defendant 1’s Plaintiff’s ground of appeal No. 1

In the petition of appeal submitted by the defendant to whom the judgment of partial failure was rendered in the first instance court, stated that "the original edition is revoked" as the purport of the appeal, and it shall not be deemed to have appealed to the part in favor of the defendant. Thus, the court below's decision is just and shall not be employed unless it is merely an independent opinion.

The grounds of appeal Nos. 2 and 3-2 are examined;

If the testimony of the non-party witness of the first instance court, which was adopted by the court below, is determined by the records, it can be recognized that the substitute payment for the tax and the amount of the government bonds is 65,418 won. Thus, the argument is groundless because it criticizes the evidence preparation and fact-finding, which are all the matters of the original judgment.

The ground of appeal No. 3 (1) is examined as follows:

Even after examining the records of the case, there is no evidence sufficient to acknowledge that the defendant subcontracted the plaintiff with the contract, and thus, the court below's rejection of the defense of offset without any evidence is just, and the arguments are groundless.

The ground of appeal No. 3 (3) is examined as follows:

According to the reasoning of the judgment of the court of first instance cited by the original judgment, the court below acknowledged the fact that the plaintiff paid 65,418 won of the total amount of taxes and national bonds agreed to be borne by the defendant at the time of receiving the construction funds of this case from the office of education of the Incheon-gun, and judged that the defendant is obligated to pay the above amount to the plaintiff. However, since a purchaser of national bonds is entitled to pay the above amount to the plaintiff, the plaintiff can purchase the national bonds on behalf of the plaintiff, and if the plaintiff intends to receive the substitute payment for the national bonds from the defendant, the plaintiff must deliver the national bonds to the defendant, and both obligations should be viewed as having a concurrent performance relationship. According to the records, the defendant defense that the payment cannot be made without the delivery of the national bonds purchased by the plaintiff cannot be made at the present (the preparatory brief of October 14, 1964 stated by the court below at the third oral proceedings of the court below) is clear that the defendant's assertion was an objection to simultaneous performance, which affected the judgment of the court below.

Therefore, the part of the original judgment ordering the payment of 65,418 won 50 won per annum with the payment of taxes and government bonds is reversed, and that part of the case is remanded to the Seoul High Court, and the defendant's remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating judges.

Justices of the Supreme Court (Presiding Judge)