The case holding that the buyer may rescind the sales contract without any peremptory notice for performance in case where the seller claims that the contract was rescinded by himself due to a cause attributable to the buyer, and the buyer claims that the contract was rescinded, even though the buyer provided the remainder payment.

Articles 390 and 544 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Han-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Attorney Kim Young-soo, Counsel for the plaintiff-appellant)

Defendant (Law Firm Lee & Lee, Attorneys Lee Jong-ho et al., Counsel for the defendant-appellant)

Seoul Central District Court Decision 2007Na26973 Decided March 26, 2008

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

After compiling the adopted evidence, the court below acknowledged the facts as stated in its decision. The plaintiff provided the duty to pay the remainder pursuant to the contract of this case while the defendant delayed the performance of the seller's duty pursuant to the contract of this case. However, since the plaintiff did not notify the performance within a reasonable period after the defendant's delay of performance and it cannot be said that the defendant did not intend to perform his obligation in advance, the plaintiff did not have the right to cancel the contract of this case. Thus, the court below determined that the plaintiff's expression of intent to cancel the contract

However, such judgment of the court below is hard to accept.

According to the facts acknowledged by the court below, the defendant, even though the plaintiff provided the remainder payment, deposited the amount equivalent to the down payment he received by asserting that the contract of this case was rescinded by the defendant due to the plaintiff's fault. Thus, barring any special circumstances, the defendant expressed in advance his intent not to perform his obligation even if the plaintiff notified the performance. In such a case, the plaintiff may rescind the contract of this case without the peremptory notice of performance under the proviso of Article 544 of the Civil Act.

The court below acknowledged the above facts and rejected the plaintiff's claim for cancellation of the contract because it is difficult for the defendant to have finally and finally expressed his intention not to perform his obligation. However, there is no reason to regard the same type of non-performance as a type of non-performance on an equal basis with delay of performance, etc. as a requirement that generates damages, etc. pursuant to Article 390 of the Civil Act (see Supreme Court Decision 2004Da53173, Aug. 19, 2005) and as a requirement for the rescission of the contract without notice of performance for the debtor who has already been delayed performance, etc. as a requirement for the occurrence of the contract without notice of performance.

In conclusion, the judgment of the court below is erroneous in the misapprehension of legal principles as to the peremptory notice of performance as an element of the right of rescission, which affected the conclusion of judgment.

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Ji-hyung (Presiding Justice)