[1] The legal nature of the assumption of an obligation where the buyer takes over the obligation to return the lease deposit as to the object of sale and takes over the obligation to deduct the debt from the purchase price

[2] The legal nature of the claim in a case where the seller seeks payment of the purchase-price equivalent to the amount of the purchase-price after the seller paid the debt that he accepted

[1] In a case where the buyer of a real estate agrees to take over the obligation to return a lease deposit on the object of sale and deduct the amount of such obligation from the purchase price, such acquisition shall be deemed an acquisition rather than an exemption from the seller, unless there are special circumstances, and in order to regard it as an assumption of obligation as an exemption from the obligation, the creditor’s consent should be required.

[2] In the case of performance acceptance, when the seller performs the buyer's obligation of acceptance on behalf of the buyer or at will, the seller holds a damage claim or indemnity claim against the buyer, and the seller claims the payment of the purchase price equivalent to the amount of the above obligation and the buyer claims the damage claim or indemnity claim.

[1] Article 454 of the Civil Code / [2] Article 454 of the Civil Code

[1] [2] Supreme Court Decision 92Da23193 delivered on February 12, 1993 (Gong1993Sang, 963), Supreme Court Decision 94Da2190 delivered on May 13, 1994 (Gong1994Sang, 1682) / [1] Supreme Court Decision 93Da19108 delivered on June 29, 1993 (Gong1993Ha, 2141) 92Da23377 delivered on June 14, 1994 (Gong194Ha, 1937), Supreme Court Decision 94Da58599 delivered on August 11, 195 (Gong195Ha, 3124)

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

Defendant 1 and two others

Daegu District Court Decision 95Na13119 delivered on November 27, 1996

The ancillary claim part of the judgment of the court below is reversed, and the case is remanded to the Daegu District Court. The remaining grounds of appeal by the plaintiff are dismissed. The costs of appeal concerning the dismissed part shall be borne by the plaintiff

We examine the grounds of appeal.

1. Regarding ground of appeal No. 1

A. The plaintiff's assertion is as follows.

Around July 3, 1984, the Plaintiff entered into a sales contract with the Defendants to sell the instant subject matter to KRW 52,00,000,000. The Plaintiff received KRW 4,230,000 from Defendant 1 as a down payment, and an intermediate payment of KRW 18,00,000, the Defendants assumed the Plaintiff’s obligation to return the lease deposit against Nonparty 1, and agreed to take over the remainder payment of KRW 29,770,00 as well as the Defendants’ obligation to take over the Plaintiff’s obligations against the other creditors. The Defendants issued the documents required for the registration of ownership transfer to the Defendants on the 5th of the same month. However, the Defendants did not pay the lease deposit against the above Nonparty 1, but did not pay the Plaintiff’s obligation to the other creditors, and thus, the Plaintiff returned the above lease deposit to Nonparty 1 by the Plaintiff on May 10, 193.

B. On the grounds delineated below, the lower court determined that the Plaintiff’s above claim goes against the res judicata of the final and conclusive judgment, and thus, is groundless.

In other words, around 190, the plaintiff filed a lawsuit claiming the cancellation of ownership transfer registration under the name of 90 Daegu District Court No. 23414, and the plaintiff and the non-party 2 (hereinafter the defendants) to sell the above building at KRW 52,00,00 with the defendant 1, the plaintiff received only KRW 4230,00 as a down payment and delivered documents necessary for the registration of ownership transfer to the above defendant, and the defendants did not pay the remainder of the purchase price despite the fact that the plaintiff's contract was lawfully rescinded. The plaintiff filed a lawsuit claiming the cancellation of ownership transfer registration under the name of 90 of Daegu District Court No. 1992, Jan. 16, 1992 on the ground that the above claim was filed by the plaintiff 1, the plaintiff had a total amount of KRW 29,70,000,000 on the grounds that the above contract amount was revoked, and the plaintiff's remaining amount of the above 200,700,000.

C. In the event a final judgment has become final and conclusive, the assertion or defense arising from the grounds that could have arisen and submitted prior to the closing of argument in the trial court is interrupted by res judicata of the final and conclusive judgment, and thus, it is not allowed for the parties to make a claim contrary to the contents of the final and conclusive judgment on such grounds. Even if specific facts alleged by the Plaintiff as the cause of the instant claim are somewhat different from those in the previous suit, the gist of the assertion is that the Defendants rescinded the contract by failing to pay the Plaintiff the purchase price, excluding the down payment, and that this is final and conclusive as having no reason in the previous

The judgment of the court below is just and there is no violation of law by misunderstanding legal principles as asserted in the grounds of appeal.

2. Regarding ground of appeal No. 2

A. According to the reasoning of the judgment below, the court below found, based on the following evidences, that the plaintiff was liable for the total amount of KRW 29,770,000 against the defendants, but the plaintiff did not have any circumstance to repay the above amount, and the defendants sold the building of this case to the defendants with the price of KRW 52,00,000. The defendants dealt with the payment of the above amount of claim 29,770,000 against the plaintiff as part of the above purchase price set off against set-off. At that time, the court below held that the defendants exempted the defendants from liability for the return of the lease deposit amount of KRW 18,00,00 against the non-party 1 who was aged in the above building at that time to pay the above amount of KRW 4,230,00 to the plaintiff on the date of the contract, and held that the plaintiff's claim for the remainder of the lease deposit amount of KRW 29,700,00 against the non-party 1 was without merit.

B. In light of the records, it is proper that the court below acknowledged that part of the Plaintiff’s claim for the purchase price against the Defendants was offset against the Defendants’ claim amounting to KRW 29,770,000 against the amount equal to that of the Defendants, and there is no error of law such as incomplete deliberation or misconception of facts against the rules of evidence as alleged in the grounds of appeal, but it is hard to accept the Plaintiff’s claim against the Defendants on the ground that the Defendants exempted Nonparty 1 from the Plaintiff’s claim for the refund of the lease deposit amount amounting to KRW 18,00,000.

In a case where the buyer of a real estate takes over the obligation to return a lease deposit on the object of sale and the buyer agrees to deduct the amount of the debt from the purchase price, such acceptance shall be deemed not a exempted obligation but a performance acceptance, barring any special circumstance, and in order to view it as a exempted obligation, the creditor's consent should be required (see, e.g., Supreme Court Decisions 88Meu29467, Jan. 25, 1990; 94Da2190, May 13, 1994; 94Da58599, Aug. 11, 1995). Meanwhile, in the above case of an acquisition of performance, the seller shall have a damage claim or indemnity against the buyer if the seller pays the debt to the buyer at his own discretion due to the buyer's default of the obligation to take over or on behalf of the buyer, and the seller shall be deemed to have claimed for reimbursement of the damage claim or its claim to the amount of the purchase price.

Therefore, the court below should have first examined whether the above non-party 1 consented to the acceptance of the obligation to return the lease deposit by the defendant, etc., and there is room to view that the above assertion by the plaintiff was merely an acceptance of performance without the consent, and therefore, it should have sought an explanation on this point. Furthermore, the court below should have deliberated on whether the plaintiff paid the above non-party 1 with his own contribution to pay the takeover obligation, and what amount the plaintiff paid to the above non-party 1, and determined the legitimacy of the plaintiff's claim.

Nevertheless, without examining this point, the court below's rejection of the plaintiff's conjunctive claim of this case by concluding that the defendants took over the above obligation to return the lease deposit with exemption from liability, and there is an error of law of misconception of facts due to a violation of the rules of evidence.

The grounds of appeal are with merit.

3. Therefore, the part of the judgment of the court below regarding the conjunctive claim is reversed, and the case is remanded to the court below, and the remaining appeal is dismissed, and the costs of appeal are assessed against the plaintiff. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Im-soo (Presiding Justice)