The person entitled to receive the negligence from the real estate where the purchaser who did not receive the real estate for the sale of real estate in possession of a third party has completed the registration of ownership transfer in advance by means of the reduction of the pre-sale litigation period, but has not yet paid the purchase amount (=seller)

Even if the buyer who did not receive the target real estate in possession of a third party in the sale and purchase of real estate has received the registration of ownership transfer in advance by means of the reduction of the pre-payment period, so long as the purchase price is not paid in full, the fruits accruing from the real estate shall belong to the seller, not the buyer.

A. Article 587 of the Civil Code

Plaintiff

Succession to Defendant’s Attorney Lee Dong-soo

Daegu High Court Decision 90Na6089 delivered on August 1, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The defendant's attorney's grounds of appeal are examined.

1. According to the reasoning of the judgment below, the plaintiff should cancel provisional registration under the name of non-party 1, which was made at the time of receiving intermediate payment at the time of the conclusion of the contract between the plaintiff and the defendant, and the defendant shall pay the remaining amount on the agreed date, and if the non-party 2's refusal to surrender the real estate at the time of 3 days, the defendant shall file a lawsuit against the above non-party 2 at his own expense and receive the order of 00 won as well as the above 00 won per month for damages due to the delay of the above 00 days during which the above 0-month period is expected to be required for the above 0-month lawsuit, and the above 1,000 won for the above 0-month period is 00 won for the above 0-month period, and the above 1,000 won for the above 0-month period is 00 won for the above 1,000 won for the above 1,000 won for the above 20-month period.

As acknowledged by the court below, inasmuch as the Defendant, as the purchaser of the instant real estate, received the registration of ownership transfer in advance due to the neglect of the pre-sale suit, as long as the purchase price is not paid in full, the right to receive the fruits accrued from the instant real estate shall not be the Defendant, and the costs of the said pre-sale suit shall be borne by the Plaintiff. As such, the above amount paid by the Defendant as unjust enrichment equivalent to the rent for the period during which the instant real estate was not clearly identified by Nonparty 2 and the Plaintiff as the seller, rather than the Defendant

In theory, the defendant's failure to pay the remaining amount is due to the plaintiff's failure to cancel provisional registration, but it is obvious that the defendant's prior payment is the obligation to pay the remaining amount in light of the facts established by the court below.

In the end, the court below is just in holding that the defendant is liable to return the above amount to the plaintiff as unjust enrichment, and there is no error in the misapprehension of legal principles as to the attribution of the right to receive negligence in the sale of real estate as pointed out in the theory of lawsuit. It is without merit

2. According to the facts established by the court below, it is clear that the plaintiff's payment of damages of KRW 1,00,000 per month for a certain period expected to be required by the lusing lawsuit against the defendant is premised on the defendant's payment of the remainder on the date of payment of the remainder. Thus, unless the defendant fails to pay the remainder on the date of payment of the remainder, it cannot be deemed that the defendant has the above damage claim against the defendant.

In the same purport, the court below is just in rejecting the defendant's defense of offsetting the damage claim against the automatic claim, and there is no error of law like the theory of lawsuit.

In addition, the court below rejected the defendant's assertion that the amount of damages equivalent to the interest accrued from commercial bank interest rate was offset against the plaintiff's claim for return of unjust enrichment of this case with automatic claim, since the damage claim equivalent to the amount of the sales price already paid to the plaintiff to the plaintiff as a clear paper of the real estate of this case occurred to the defendant. Since the plaintiff did not bear the above liability for damages equivalent to the above interest prior to receiving the full payment, the above defendant's assertion is without merit. This judgment is without merit and there is no error of law of incomplete deliberation

3. Therefore, the appeal is dismissed, and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Song Man-man (Presiding Justice)