Where an intermediate payment of KRW 390,000,000, out of the intermediate payment of KRW 1,400,000, is received between parties to a transaction after the date of payment of the agreed intermediate payment, or

In general, in the real estate sales contract where the buyer gives up the down payment and the seller gives up the contract deposit, the term “defensive contract” refers to the ultimate liability with respect to the nonperformance of the contract, and in case where the buyer gives up the intermediate payment of KRW 1,400,000 to September 9, 1974, the buyer agreed to pay the intermediate payment of KRW 390,000 to the intermediate payment of KRW 390,000 to the buyer without any end, there is no room to view that the initial contract provision on the intermediate payment payment, unless special circumstances exist, has been modified, and the buyer is not immediately liable for the failure of the contract.

Plaintiff

Defendant

Gwangju District Court Decision 76Na66 delivered on April 29, 1976

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

The plaintiff's grounds of appeal are examined.

According to the reasoning of the judgment below, in the real estate sales contract of this case between the original defendant on August 30, 1974, the court below held that the plaintiff paid KRW 1,400,000,000 after deducting KRW 1,00,000, which was paid as down payment from the purchase price of KRW 2,100,000, and the remaining KRW 600,000 from the intermediate payment until September 9 of the same year shall be paid to October 10 of the same year. In the case where the plaintiff who is the buyer under this contract is the buyer, the court below given up the down payment and agreed to compensate for the double payment of the down payment at the time when the defendant is the seller's weak contract, and the plaintiff paid only KRW 390,00,00 as the intermediate payment for September 11 of the same year, and as the plaintiff did not pay KRW 1,40,000,00, which was paid by the plaintiff, the contract deposit was lost due to the right to return.

However, in general, the term “defensive contract” in the above agreement refers to a final liability as to the nonperformance of the contract. As such, even though the Plaintiff agreed to pay KRW 1,400,000 as an intermediate payment until September 9, 1974, the Plaintiff paid KRW 390,000 to the Defendant, as recognized by the lower court, if the said KRW 390,000 was received as an intermediate payment without the end, barring any special circumstances, it cannot be deemed that the initial contract provision regarding the payment of intermediate payment was amended, and thus, the Plaintiff’s liability for the nonperformance of the contract is not immediately returned to the Plaintiff.

Therefore, the judgment of the court below which held that the final liability of the parties to the contract was extinguished by the plaintiff's right to claim the return of the down payment by the debt, which was not set up by one of the parties to the contract, is ultimately erroneous in the misapprehension of legal principles as to the non-performance liability. Thus, the judgment below is reversed upon receiving the plaintiff's ground of appeal and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Young-young (Presiding Justice)