[1] In a case where both parties’ debt are in a simultaneous performance relationship, whether they are exempted from the liability for delay only if they exercise their defenses of simultaneous performance (negative)

[2] In a case where the remaining payment date has arrived at the seller's duty of transfer of ownership and the seller's duty of transfer of ownership is placed in a simultaneous performance relationship with the seller's duty of transfer of ownership, whether the seller is liable to delay the intermediate payment thereafter (negative)

[1] In cases where both parties’ obligations are jointly performed in a bilateral contract, even if the fulfillment period for one party’s obligations arrives, the obligor is not liable for the delay of performance until the other party’s obligations are performed, and such effect does not necessarily result in the obligee who asserts that he/she is not liable for the delay of performance.

[2] Even if the buyer did not pay the intermediate payment, if the due date for the payment of the remainder is not paid until the due date for the payment of the intermediate payment, and the seller’s transfer registration required documents for ownership transfer registration at the same time with the remainder payment have been provided, barring special circumstances, if the buyer’s intermediate payment and the remainder payment are in a simultaneous performance relationship, barring any special circumstance, and the buyer is not liable for delay in payment for the failure to pay the intermediate payment at the same time.

[1] Article 536 of the Civil Code, Article 188 of the Civil Procedure Act / [2] Article 536 of the Civil Code

[1] Supreme Court Decision 91Da38723, 38730 decided Jul. 24, 1992 (Gong1992, 2520), Supreme Court Decision 94Da12739 decided Jul. 14, 1995 (Gong1995Ha, 2770), Supreme Court Decision 96Da4081, 40868 decided Aug. 22, 1997 / [2] Supreme Court Decision 80Da268 decided Apr. 22, 198 (Gong1980, 1280), Supreme Court Decision 87Da1029 decided Sept. 27, 198 (Gong198, 1328), Supreme Court Decision 90Da3979 decided Mar. 19, 197 (Gong1989, 197Da19479 decided Apr. 19, 197)

Plaintiff (Counterclaim Defendant) (Attorney Choi Jong-hoon, Counsel for the plaintiff-Counterclaim defendant-appellant)

East Asia Construction Industry Co., Ltd. (Attorney Lee Byung-ho, Counsel for the defendant-appellant)

Gwangju High Court Decision 96Na1770, 1787 delivered on October 30, 1997

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

We examine the grounds of appeal.

1. Where both obligations are simultaneously performed under bilateral contract, even if one of the parties' obligations becomes due, if the other party's obligations are not met until the other party's obligations are performed (see Supreme Court Decision 91Da38723, 38730, Jul. 24, 1992; Supreme Court Decision 96Da40851, 40868, Aug. 22, 1997). Such effect does not necessarily arise only when the party who asserts that he is not responsible for the delay of performance has exercised his right of defense of simultaneous performance (see Supreme Court Decision 96Da40851, 40868, Aug. 22, 1997). In light of the records, the court below's assertion that the plaintiff's claim for delay of performance occurred from sale of bilateral contract of this case, which is a bilateral contract of this case, and thus, it cannot be acknowledged that the plaintiff's claim for delay of payment and the transfer registration procedure of ownership cannot be made for the first time.

In addition, even if the buyer did not pay the intermediate payment under the prior obligation, if the date of payment for the late payment for the late payment for the late payment without the payment for the late payment for the late payment for the late payment for the late payment for the late payment for the late payment without the payment for the late payment for the late payment for the late payment for the late payment for the late payment for the late payment for the seller, barring any special circumstance, the buyer's payment for the late payment for the late payment for the late payment for the late payment for the late payment for the late payment for the late payment for the late payment for the late payment for the late payment (see Supreme Court Decisions 80Da268 delivered on April 22, 198, 87Da1029 delivered on September 27, 198, 90Da1930 delivered on March 27, 191, 91Da43107 delivered on April 14, 192), and there are no errors in the misapprehension of legal principles as to the intermediate payment as alleged in the grounds for appeal.

2. According to the reasoning of the judgment below, in light of the process and progress of the lawsuit in this case and the fact that part of the plaintiff's claim for damages for delay is dismissed, the court below held that the defendant did not apply damages for delay at the rate of 25% per annum as provided by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings to the above period since it is reasonable for the defendant to resist the existence and scope of the obligation until the date of the judgment below to the date of the judgment below. In light of the records, the above judgment of the court below is just

3. Therefore, 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 Kim Jong-sik (Presiding Justice)