Cancellation of contract in bilateral contract

In the event that a sale contract prepared by the parties to a sale and purchase of real estate may be exchanged with a document in which the procedure for registration of ownership transfer is completed and there are no circumstances to deem that the purchaser renounced his/her right to simultaneous performance pursuant to the contract, it shall be limited to the time when the seller presents the document necessary for registration of ownership transfer to the purchaser in order to cancel the contract and then demands the payment of the remaining amount and

Article 544 of the Civil Act

Supreme Court Decision 81Da663, 664 decided Nov. 24, 1981; 82Da340 decided Jul. 24, 1984; 79Da553 decided May 29, 197.

[Defendant-Appellee] Plaintiff 1

Defendant

Jeju District Court Decision 86Na90 delivered on August 28, 1987

The judgment below is reversed, and the case is remanded to Jeju District Court Panel Division.

According to the reasoning of the judgment below, the court below found that the plaintiff and the defendant entered into a contract on July 24, 1982 to trade the real estate in 3.2 million won, to pay 300,000 won for the down payment and 1.5 million won for the intermediate payment, and 1.420,000 won for the remainder payment by August 30 of the year, and notified the plaintiff to pay the remainder payment by the end of March 1983, without paying the remainder payment on the date. In this case, the plaintiff demanded the defendant to deliver one copy of the defendant's certificate of personal seal impression to transfer the real estate ownership, and the defendant paid the remainder payment by the certificate of personal seal impression and one copy of the certificate of personal seal impression, but the plaintiff did not pay the plaintiff's remaining payment. However, the plaintiff recognized that the defendant declared his intention to cancel the contract to the plaintiff on the grounds that the remaining payment was not made by the plaintiff at that time, and the above sale between the plaintiff and the defendant was lawfully cancelled.

However, according to Article 4 of the Real Estate Sales Contract (Evidence A No. 4) entered into between the plaintiff and the defendant, the remaining price may be exchanged with the complete documents of the procedure for registration of ownership transfer on August 30, 1982 and the plaintiff, who is the purchaser, waives his right to defense of simultaneous performance under the contract does not peep, the rescission of the contract cannot be deemed null and void because it cannot be viewed that the plaintiff's demand for the payment of the remaining price is made when the plaintiff presented the documents necessary for registration of real estate ownership transfer to the plaintiff in order to cancel the contract, and the plaintiff's demand for payment of the remaining price will not be made.

However, since one copy of the certificate of personal seal impression that the defendant prepared cannot only transfer the real estate owned by the defendant to the plaintiff, it is difficult to conclude that the defendant's peremptory notice of payment or declaration of termination of the contract against the plaintiff is lawful.

Ultimately, the court below cannot be said to have erred by misapprehending the legal principles on the cancellation of a contract in a bilateral contract, or failing to clearly state that the plaintiff has waived the right to defense of simultaneous performance.

The appeal pointing this out is with merit.

Therefore, the judgment of the court below is reversed, and the case is remanded to the Jeju District Court Panel Division for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Young-young (Presiding Justice)