Whether Article 536 of the Civil Act concerning simultaneous performance is applied mutatis mutandis to the duty of restitution upon the invalidity of a contract

The purpose of Article 536 of the Civil Act, which provides the right of defense for simultaneous performance, is due to the merger between the concept of fairness and the principle of good faith, and it is reasonable to apply Article 536 of the Civil Act mutatis mutandis to the simultaneous performance relationship even in cases where the bilateral contract is invalidated and each party shall return it to the original duty of restitution in accordance with Article 549 of the Civil Act.

Article 536 of the Civil Act

Supreme Court Decision 75Da1241 delivered on April 27, 1976 (Gong1976,9130) 92Da45025 delivered on May 14, 1993 (Gong1993,1698) 93Da5871 delivered on August 13, 1993 (Gong193,2419)

Plaintiff 1 and 6 others, Counsel for the defendant-appellant

Changwon-si, Attorney Kim Young-han, Counsel for the defendant-appellant

Changwon District Court Decision 92Na6307 delivered on February 18, 1993

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, in conducting a site development project for the private district of this case based on its adopted evidence, the court below decided that the land not belonging to the development restriction zone is subject to the project district based on the boundary line of the development restriction zone, and the land located on the boundary line with the development restriction zone has caused the remaining land not included in the above development restriction zone among one parcel of land; the fact that the land in question exists in the public land for the implementation of the above project plan, and the purchase of the remaining land is possible only if their purchase request is required under certain conditions of the above special law, but did not inform the owner of the fact that it is possible to purchase the remaining land; the court below did not make a prior determination of the compensation amount for the entire land including the remaining land in question by considering the compensation amount of the entire land as a package of consultation with the owner; in this process, the plaintiffs, who are the decedent, should not be included in the development restriction zone of this case, nor should the whole land be included in the compensation amount of the remaining land at the time of the purchase.

Furthermore, the court below held that the above non-party did not respond to the request for purchase of the remaining land of this case if it did not have any error in the above motive in comparison with the provisions of the above Act on Special Cases, on the premise that there was an error of motive to the above non-party, who is the selling party, in the purchase consultation as to the remaining land of this case, and that the public official belonging to the defendant in charge of the purchase consultation provided considerable extent of the causes of the above mistake, and that the remaining land of this case is considerably wide compared to the part to be incorporated, and it could continue to be used as farmland of this case, which is the previous purpose, since the remaining land of this case was in contact with other farmland, the above non-party could have been used as farmland of this case.

Although only part of the land of this case is subject to purchase by consultation, there are such circumstances as seen above, and it is deemed that the above non-party would not have made a sales contract until the remaining land in absence of such circumstances. Therefore, it can be deemed that the contract is a content, and it cannot be said that the mistake of motive is not an error in the important part of the expression of intent, or that it was not indicated at the time of the defendant. Therefore, the above judgment of the court below is just and there is no error in the misapprehension of legal principles, such as the theory of lawsuit. There is no ground for argument.

2. In addition, the above non-party's defense that the above non-party received compensation without any objection and transferred registration documents after the agreement on the purchase of the land of this case is reached, and thus, it shall be deemed that the above consultation was made legally in accordance with Article 145 (1) and (2) of the Civil Act. Even if it is not so, the above non-party's defense that the right to cancel was terminated three years after the above registration date, since it was exceeded the above non-party due to mistake, which is the cause of cancellation, at the time when each transfer of ownership was made in the name of the defendant, was completed in the name of the defendant. The court below rejected the above defense on the premise that the above non-party was in excess of the above erroneous state as well as when the above non-party received compensation for the land of this case and transferred the documents related to the registration, and there is no evidence to prove that each transfer of ownership is completed in the name of the defendant. This judgment is just and there is no error in the misapprehension of legal principles as to the right of ratification and cancellation

In light of the circumstances leading up to the cancellation from the purchase by consultation in this case, it cannot be said that the plaintiffs' expression of intent for cancellation after the lapse of the same period as the theory of lawsuit and the rise in land price cannot be permitted against the doctrine of the gold-competing.

3. The purpose of Article 536 of the Civil Act, which provides for the right to defense of simultaneous performance, is due to the merger between the concept of fairness and the principle of good faith. Considering that Article 549 of the Civil Act applies mutatis mutandis to the duty to restore each party in the case of rescission of a contract pursuant to Article 549 of the Civil Act, it is reasonable to apply Article 536 of the Civil Act, deeming that there exists a simultaneous performance relationship even in the case where each party has to return bilateral contract upon invalidation of bilateral contract, and that each party has to acquire each other. In light of the concept of fairness, there is no reason to distinguish between the duty to reinstate when the contract becomes null and void and the duty to reinstate at the time of termination of the contract, and if the return obligation is enforced first only to either party (see Supreme Court Decision 92Da45025 delivered on May 14, 1993; Supreme Court Decision 93Da5871 delivered on August 13, 1993).

Therefore, the lower court’s judgment that the obligation to return the purchase price and to cancel the Defendant’s ownership transfer registration to be borne by the cancellation of the instant sales contract is in the simultaneous performance relationship is justifiable.

In addition, the court below's rejection of the defendant's assertion that the court below should refund the amount equivalent to the value based on the officially announced land price of January 1993 or the interest equivalent to the interest rate of commercial banks, on the grounds as stated in its reasoning, is justifiable. The argument is

4. On the grounds of above, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-ho (Presiding Justice)