The case where it is not deemed that the right of defense of simultaneous performance has been lost due to the failure of the recipient body;

The right of defense of simultaneous performance held by the other party cannot be deemed extinguished solely on the fact that one of the parties to a bilateral contract provided the reality first, and even if the other party omitted the other party to the contract into the recipient body, if the offer of performance is not continued, the right of defense of simultaneous performance held by the other party cannot be deemed extinguished.

Article 536 of the Civil Act

Plaintiff (Attorney Park Tae-tae, Counsel for the plaintiff-appellant)

Defendant

Daegu High Court Decision 65Na490 delivered on May 11, 1966

The appeal is dismissed.

The costs of appeal shall be borne by the plaintiff.

The judgment on the first ground of appeal by the Plaintiff’s Attorney;

Even if one of the parties to a bilateral contract provides a reality first, and even if the other party puts the other party into the place of receipt, it is reasonable to interpret that the other party does not lose his right to defense of simultaneous performance as to counter-performance only with the fact that the other party has provided performance once in the past. Thus, the court below has established the fact that the plaintiff's obligation to purchase and sell the real estate and the obligation to deliver the real estate and the defendant's obligation to deliver the real estate are related to simultaneous performance, and as long as the plaintiff's right to defense of simultaneous performance is not extinguished even if the payment was made only once at the date of the performance, the defendant's right to defense of simultaneous performance is not extinguished, so it is reasonable to reject the plaintiff's claim for damages on the ground that the defendant cannot be held liable for the non-performance of the obligation to deliver the real estate, and there is no objection to the contrary opinion that criticizes the original judgment.

Judgment on ground of appeal No. 2

In this case, it is evident that the plaintiff's attorney has no objection or evidence, and the above purport of the statement appears to be a statement that there is no evidence to prove the amount of damage caused by the defendant's failure to keep the duty of custody, which is pointed out in the debate, so there is no error of law in the court below's failure to exercise the right to ask for proof.

Therefore, it is so decided as per Disposition by the assent of all participating Justices.

Justices Han Sung-dong (Presiding Judge) of the Supreme Court