[1] In a case where a seller acquires the registration of ownership transfer of an object by exercising a seller's right to sell the object by itself, whether the seller is liable to implement the procedure for registration of ownership transfer for the object of sale (affirmative)

[2] The case holding that the seller cannot cancel the sales contract for the right of sale on the ground of the buyer's delay in the payment of the balance, on the ground that the buyer can refuse to pay the balance until it is possible for the buyer to change his name, even if the seller delivers documents necessary for the change in the name of the buyer to the buyer

[1] The main purpose of a sales contract, the object of which is the right of sale, is to have a buyer acquire the ownership of an object based on the right of sale, so a seller is obligated to allow a buyer to acquire the ownership of an object based on the right of sale. In this case, where the purpose of a sales contract can be achieved by permitting a change of the ownership of a buyer in the name of a buyer by changing the ownership of a buyer in the name of a buyer, a seller is obligated to perform the procedure for change of the ownership of a buyer in the name of a buyer. Furthermore, if a buyer acquires the ownership of an object based on the right of sale and then acquires the ownership of the object, the buyer does not have a duty to complete the registration of ownership transfer in the future, but if a buyer acquires the ownership of an object by exercising the right of sale and then acquires the ownership of the object by exercising the right of sale in the name of a buyer, there is no way to achieve the purpose of sale other than transferring the ownership transfer of the object in the future.

[2] The case holding that the seller cannot cancel the sales contract for the right of sale on the ground of the buyer's delay in the payment of the balance, since the buyer may refuse to pay the balance until it is possible to change the buyer's name, even if the seller delivers the documents necessary for the change of the buyer's name to the buyer

[1] Article 568 of the Civil Code / [2] Articles 536, 544, and 568 of the Civil Code

[1] Supreme Court Decision 95Da36671 delivered on February 13, 1996 (Gong1996Sang, 942)

Plaintiff (Law Firm KEL, Attorneys Lee Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Ha & Yang, Attorneys Yoon Ho-ho et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na62506 decided May 18, 2006

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

1. The main purpose of a sales contract, the object of which is the right of sale, is to have a buyer acquire the ownership of the object based on the right of sale, and thus, the seller of the right of sale is obligated to allow the buyer to acquire the ownership of the object based on the right of sale. In this case, where the purpose of a sales contract can be achieved by permitting the change of the ownership of the buyer in the name of the buyer, the seller is obligated to fulfill his/her obligations when he/she implements the procedure for change of the name of the buyer. Furthermore, the buyer is not obligated to complete the registration of ownership transfer after acquiring the ownership of the object based on the right of sale. However, where the buyer acquires the ownership of the object by exercising the right of sale from the buyer without the change of the buyer's name, there is no way to achieve the purpose of sale except for the method of transferring the ownership transfer of the object in the future, and there is no liquidation relationship with the buyer, separately from the fact that the sale price remains (see, e.g., Supreme Court Decision 95Da63716, Feb. 13, 1996).

The court below held that, in the event that the plaintiff purchased only the right to sell the apartment of this case from the defendant, but failed to implement the procedure for change of the name in the name of the plaintiff due to the defendant's cause and the non-cooperation of Samsung Electronic Co., Ltd. (hereinafter "Tsung Electronic Co., Ltd."), and thereafter the defendant paid the remaining purchase price in full at his own expense and came to move into the above apartment of this case, even if the registration of ownership transfer has not been completed up until then, the defendant is in the position to complete the registration of ownership transfer at any time pursuant to the judgment of the first instance as to Samsung Electronic Co., Ltd. pursuant to the judgment of this case, and this is the result that the defendant's exercise of the right to sell the apartment of this case and has become effective as it does not differ from the acquisition of the ownership. Thus, the court below held that the defendant is liable to implement the procedure

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and there is no error in the misapprehension of legal principles as to contract acceptance as alleged in the grounds of appeal.

2. In general, in a sales contract for the right of sale and purchase, a seller shall be deemed to have provided a buyer with all documents necessary for changing the name of a buyer. However, if there are special circumstances where it is impossible to change the name of a buyer, the seller cannot be deemed to have provided a buyer with the above documents to fulfill his/her obligation to cancel the sales contract.

On July 10, 2002, the court below rejected the defendant's defense that the plaintiff had been lawfully released on July 10, 2002 due to delay in the performance of his obligation to pay the remainder after receiving the documents related to change of title related to simultaneous performance, on the ground that even if the defendant first delivered documents such as the original contract of this case without the payment of the remainder, the plaintiff can still refuse to pay the balance until the change of title is possible. In light of the above legal principles and records, it is proper to take the above measures of the court below, and there is no violation of law such as misunderstanding of legal principles as to delay of performance as alleged in the grounds of appeal.

3. The court below rejected the defendant's assertion that the contract of this case should be deemed to have been rescinded by the deposit of intermediate payment as of July 10, 2002 from the point of view of the good faith principle or the specific validity. The court below rejected the defendant's assertion on the ground that the contract of this case is still valid, taking into account all other circumstances, such as the fact that even if the market price was changed beyond the expectation of the parties after the conclusion of the contract, such circumstance cannot be an element to the effect of the contract which remains effective, and that it is difficult to deem that the plaintiff is responsible for the negligence attributable to the plaintiff in the overall process of the contract of this case. In light of the records, it is proper to take the above measures of the court below, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles

4. Even if the defendant, who acquired the ownership of the apartment of this case and transferred the ownership of the apartment of this case to the plaintiff, bears an amount equivalent to the interest on the amount loaned from financial institutions for the payment of acquisition tax, registration tax, and remaining price (hereinafter "additional cost"), this is only the expenses incurred by the defendant in performing his/her duty of transfer of ownership. Thus, unless there is a special agreement between the plaintiff and the defendant that the plaintiff should bear the additional cost, the defendant cannot claim the additional

In the same purport, the court below is justified in rejecting the defendant's simultaneous performance defense, and there is no error in the misapprehension of legal principles as to the burden of expenses as alleged in the grounds of appeal.

5. 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 Kim Ji-hyung (Presiding Justice)