(a) The time when the right of rescission may be exercised by repaying or abandoning an amount which is double the down payment in the sales contract; and

(b) Where a re-contract is concluded with the contents newly set forth by the date of payment of the remainder after maintaining the contents of the initial sales contract: Provided, That where the sum of the down payment and the intermediate payment already received is a new down payment, and the remainder is an remainder, whether the right of rescission may be exercised by repayment or renunciation of the new down payment;

A. Where one of the parties to a sales contract delivers the down payment to the other party, unless otherwise agreed by the parties, the party or the other party may not exercise the right of rescission as repayment or renunciation of the down payment, if one of the parties to a sales contract begins to perform the performance, and the commencement of performance here refers to the performance of part of the performance to the extent that it can be objectively recognizable from the outside, or the premise act necessary to perform the performance. The mere preparation for performance is insufficient, but it does not necessarily have to reach the extent of providing the performance in accordance with the terms and conditions of the contract.

B. Even if one or both parties to a sales contract have maintained the contents of the initial sales contract as they are, after the performance of either or both parties to the sales contract begins, a re-contract with the contents of the initial sales contract, including the sum of the down payment and the intermediate payment already received as a new down payment, and the remainder payment as a remainder, and the payment date of the remainder, it is reasonable to deem that the parties or the other party may not exercise the right of rescission by means of repayment or renunciation of the newly

Article 565(1) of the Civil Act

A. Supreme Court Decision 71Da1276 delivered on August 31, 1971 (Gong267) (Gong193Ha, 1854 delivered on May 25, 1993) 93Da1114 delivered on May 25, 1993 (Gong1994Sang, 1677)

Plaintiff 1 and one other

Defendant

Jeonju District Court Decision 92Na3161 delivered on February 24, 1994

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

We examine the grounds of appeal.

1. On the first and second grounds for appeal

A. The lower court: (a) concluded a sales contract with the Defendant on February 12, 1989 that the Plaintiff 1 had the above 6,700,000 won for the purchase and sale of the instant land and buildings; (b) concluded that the intermediate payment of KRW 3,00,00 on the date of the contract, and the intermediate payment of KRW 3,40,000 for the intermediate payment of KRW 300 on March 30 of the same year, and received the said down payment from the Defendant on the date of the contract without setting a deadline; (c) the Nonparty, who leased the instant land and buildings after the above sales contract, had the intent to purchase the instant land and buildings; (d) had the above 00 won for the remainder payment of KRW 60 on May 5, 1989; and (e) concluded that the said contract deposit and the intermediate payment of KRW 300 on the same date was to be paid to the Defendant for the remainder payment of KRW 600,500,000.

B. In a case where one of the parties to a sales contract delivers the down payment to the other party, unless otherwise agreed by the parties, the party or the other party may not exercise the right of rescission as repayment or renunciation of the down payment, and the commencement of performance here refers to the act of performing part of the performance of the obligation to the extent objectively recognizable from the outside or the act of premised on the performance of the obligation to the extent that it is objectively recognizable from the outside, and the preparation for performance is insufficient merely to prepare for the performance, but it does not necessarily mean that the degree of providing the performance in accordance with the terms and conditions of the contract reaches the extent of providing the performance (see Supreme Court Decision 93Da56954 delivered on May 13,

In addition, even if one or both of the parties to a sales contract has maintained the contents of the initial sales contract after the performance of the contract is commenced, it shall be reasonable to view that the parties or the other party may not exercise the right of rescission by means of repayment or renunciation of the newly determined down down payment, unless otherwise agreed by the parties, even though one or both of the parties to the sales contract has concluded a re-contract with the content of the initial sales contract, which is the sum of the down payment and the intermediate payment already received

C. In the case of this case, as determined by the court below, the plaintiff 1 already received 300,000,000 won as down payment and intermediate payment 2,00,000 won under the initial sales contract from the defendant, and thereafter, the defendant accepted the boiler of the building of this case and moved into the building of this case on June 3 of the same year, the above plaintiff can be deemed to have commenced the execution of the contract by delivering intermediate payment. The parties to the sales contract of this case after the commencement of the performance of the contract, and as determined by the court below, the above parties to the sales contract of this case shall maintain the contents of the initial contract as determined by the court below and maintain the contents of the original contract, but in order to confirm the receipt of the agreed intermediate payment and to determine the date of payment of the balance, the above contract deposit amount of 300,000,000 won and the intermediate payment of 2,30,000,000 won cannot be newly prepared as down payment or the remainder payment of the contract of this case.

D. It is proper that the court below rejected the plaintiffs' claim for cancellation due to the repayment of a double amount of the plaintiffs' down payment, and there is no error in the misapprehension of legal principles as to the mistake of facts, interpretation of juristic act, probative value of the disposal document, and termination of contract due to the violation of the rules of evidence, such as the theory of lawsuit, and there is no error in the misapprehension of legal principles as to the probative value of the disposal document

2. On the third ground for appeal

The court below's decision is justified in recognizing that the subject matter of the sale of this case between the plaintiff and the defendant was the entire land of 81 square meters and its ground building of this case, and there is no error of law such as incomplete deliberation or violation of the rules of evidence, etc.

3. On the fourth ground for appeal

The court below is justified in holding that the possession of the land and the building of this case was a lawful possession according to the implementation of the above sales contract, and it cannot be said that there was any error like the theory of lawsuit. The court below's conclusion is not acceptable. The plaintiff 1's key to the building of this case was given to the defendant after receiving the down payment and the intermediate payment pursuant to the original sales contract from the defendant. Accordingly, the defendant accepted the boiler of this case and recognized that the building of this case was occupied by the building of this case.

4. Accordingly, all appeals are dismissed, and the costs of appeal are assessed against the losing plaintiffs. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jong-sik (Presiding Justice)