“Commencement of the implementation” means “Commencement of the implementation”

The commencement of the performance refers to the commencement of the performance of the obligation itself, and the preparation of the performance alone cannot be deemed to be the commencement of the performance. Therefore, it cannot be deemed that the act of demanding the receipt of the remaining amount before the performance becomes due is the commencement of the performance.

Article 565 of the Civil Act

[Judgment of the court below]

Defendant’s Attorney Lee Jae-sung

Seoul High Court Decision 78Na2135 delivered on August 17, 1979

The original judgment is reversed, and the case is remanded to Seoul High Court.

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

According to the court below's decision, since the plaintiff purchased this real estate from the defendant's agent was offered to the defendant's agent on January 30, 1978, which was the date of the contract for the payment of the remaining amount, but refused to receive it, it was recognized that the seller deposited the remaining amount at around January 31, 191:30, the next day, and thus, the seller may redeem the down payment and cancel this contract before the buyer commences the performance of the contract. However, the plaintiff's agent did not comply with this and requested the plaintiff to receive the down payment and cancel the contract on January 26, 1978. However, the plaintiff failed to comply with this, the plaintiff's agent offered the contract cancellation amount to the plaintiff on January 30, 1978, which was 240,000 won of the down payment, and the contract cancellation cannot be seen as being 1300,000 won of the down payment.

However, the plaintiff's explanation that the defendant's agent provided 2.4 million won as a part of the contract deposit to the plaintiff and had already started the performance before expressing his intention to cancel the contract, is specifically referred to as the act of the defendant's agent and the plaintiff's performance, but the commencement of performance refers to the commencement of the performance of the obligation itself, and cannot be viewed as the commencement of the performance. Thus, the plaintiff's peremptory notice to the defendant before the expiration of the performance cannot be viewed as the commencement of the performance of the contract. Further, the seller who intends to cancel the contract by repayment of the contract deposit amount is sufficient only to provide the other party with the payment of the deposit amount, and the contract is cancelled without the need to deposit the contract amount, and the defendant's agent provided 2.4 million won prior to the cancellation of the contract amount as stated in the judgment of the court below prior to the expiration of the contract, and the plaintiff's agent expressed his intention to cancel the contract before the expiration of the contract amount. Thus, the court below erred in the misapprehension of the legal principle as to the plaintiff's agent's cancellation of the contract amount.

Justices Kang Jae-hee (Presiding Justice)