[1] Whether a seller may rescind a contract by repaying a double of the down payment received pursuant to Article 565(1) of the Civil Act in a sales contract which is a flexible invalidation without a land transaction permit under the Act on the Utilization and Management of the National Territory (affirmative)

[2] The purpose of the provision of Article 565 (1) of the Civil Code and the meaning of "before commencement of the implementation"

[3] In a case where a seller of a sales contract, which is a flexible invalidation without a land transaction permission under the Act on the Utilization and Management of the National Territory, provides a double amount of the down payment and seeks to cancel the contract, whether the buyer can perform the payment against the seller’s will before the payment date (negative)

[4] In a sales contract which is a flexible invalidation, whether only a buyer filed a lawsuit for performing his/her duty of cooperation in land transaction permission can be deemed to have commenced the performance of Article 565(1) of the Civil Code (negative)

[1] In a case where one of the parties to a contract delivers the down payment to the other party at the time of the contract, unless otherwise agreed by the other party, the seller of the down payment may waive the contract and cancel the contract until the other party commences the contract performance, and the other party may rescind the contract by repaying a double of the down payment, barring any special circumstances, even in a contract where the transaction permission under the Act on the Utilization and Management of the National Territory is void without permission, the contract between the parties is lawfully rescinded by repaying the double of the down payment and cancelling the contract.

[2] Article 565 of the Civil Code limits the time when one of the parties has commenced the exercise of the right to rescission until the time when one of the parties has already commenced the performance, the party has already disbursed the expenses required for the performance, and the party is expected to have executed the contract. If the contract has been rescinded from the other party at this stage, it is prevented because it might cause unexpected damages if the contract has been rescinded from the other party. In this regard, the "one of the parties has commenced the performance" does not necessarily have to reach up to the offer of the performance in line with the contents of the contract, but it is insufficient to simply prepare the performance because it performs part of the act of performance or performs the act of premise necessary for the performance to the extent that it

[3] In the case of a sale and purchase contract under the premise of a land transaction permit, it cannot be deemed that the buyer or seller has the obligation to pay the purchase price or to provide the documents required for the registration of transfer of ownership before the permission is granted. In addition, in the case where the seller intends to provide a double the down payment and cancel the contract pursuant to Article 565 of the Civil Code, if the offer of the down payment is not legitimate, the contract is cancelled when the seller lawfully provides the contract within the period for the right of rescission. If the seller expresses his/her intention to cancel the contract to the buyer and the seller notifies the buyer of the receipt of the down payment by the specified deadline, the payment date for the intermediate payment, etc

[4] [1] In the case of [1], the buyer cannot be deemed to have commenced the performance of the contract only with the fact that the buyer urged the seller to perform his/her duties or requested the seller to refuse the seller to perform his/her duties and received a favorable judgment in the first instance court, and the buyer cannot be deemed to have commenced the performance of the contract, and it cannot be said that the seller violates

[1] Article 565 (1) of the Civil Act, Article 21-3 (7) of the Act on the Utilization and Management of the National Territory / [2] Articles 153 and 565 (1) of the Civil Act / [3] Article 565 (1) of the Civil Act, Article 21-3 (7) of the Act on the Utilization and Management of the National Territory / [4] Articles 2 and 565 (

[1] Supreme Court Decision 97Da9383 delivered on June 27, 1997, Supreme Court Decision 97Da9376 delivered on June 27, 1997 / [2] Supreme Court Decision 92Da31323 delivered on January 19, 193 (Gong1993Sang, 721) / [2] Supreme Court Decision 93Da56954 delivered on May 13, 1994 (Gong194Sang, 1677) / [3] Supreme Court en banc Decision 90Da1243 delivered on December 24, 1991 (Gong192, 642), Supreme Court Decision 91Da3612 delivered on July 28, 1992

Plaintiff (Attorney Kim Sang-won, Counsel for the plaintiff-appellant)

Defendant (Attorney Park Tae-young, Counsel for defendant-appellant)

Seoul High Court Decision 96Na18894 delivered on December 20, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal Nos. 1 and 2 are examined together.

1. The court below held that the above contract was cancelled on October 11, 194 by the plaintiff's land transaction agreement between the defendant 2 and the defendant 60,000 won for the land of this case, and that the contract was cancelled on the same day and the remaining 385,00,000 won shall be paid under mutual agreement after the land transaction contract was cancelled. The plaintiff and the defendant were designated and publicly notified as the land transaction permission area under the Act on the Utilization and Management of the National Territory, and that the above contract was cancelled on the 19-year basis that the above contract was cancelled for the above 0-year land transaction contract and the above 0-year land transaction contract was cancelled for the above 19-year land transaction contract. The defendant cannot be viewed as being liable to the plaintiff for damages under the above 10-year contract and the above 9-year contract was cancelled on the 19-year land. The plaintiff's remaining 0-year contract was cancelled on the 19-year land.

2. Article 565 of the Civil Code limits the time when one of the parties has commenced the exercise of the right to rescission until "the commencement of the performance" is that one of the parties has already commenced the performance of the right to rescission, and the party is expected to have paid the necessary expenses, and the party is expected to have implemented the contract. In this stage, if the contract has been terminated from the other party at this stage, it is prevented (see Supreme Court Decision 92Da31323 delivered on January 19, 1993). In this context, "the party's commencement of the performance" does not necessarily lead to the offer of the performance, but it does not necessarily mean that the party has commenced the performance of the obligation to the extent that it can be objectively recognizable from the outside, and it is insufficient to simply prepare the performance (see Supreme Court Decision 93Da56954 delivered on May 13, 1994).

In addition, in the case of a sale and purchase contract under the premise of a land transaction permit, it cannot be deemed that the buyer or the seller has the obligation to pay the purchase price or to provide the documents required for the registration of transfer of ownership under the terms and conditions of the contract before the permission is granted (see Supreme Court en banc Decision 90Da12243, Dec. 24, 191; Supreme Court Decision 91Da33612, Jul. 28, 1992; etc.). In the case where the seller intends to provide the amount of the down payment and cancel the contract in accordance with Article 565 of the Civil Act, if the offering of the down payment is not legitimate, the contract is cancelled when the seller has lawfully provided the contract within the period for which the right of rescission is held. If the seller expresses his intention to cancel the contract and demands the buyer to receive the down payment by a specified time limit, the time of payment such as the intermediate payment, etc. can not be performed against the seller's will (see Supreme Court Decision 92Da312323, Jan. 19, 1993).

The court below held that the plaintiff's assertion, i.e., the defendant's obligation to cooperate with the plaintiff to obtain land transaction permission even if the defendant can cancel the contract of this case by repaying the amount of the down payment and the defendant can cancel the contract of this case, and since the plaintiff or the defendant had already been awarded winning judgment at the court of first instance due to the defendant's failure to perform his obligation, the contract cancellation is illegal or invalid since the plaintiff or the defendant had already commenced the performance of the contract of this case. Thus, the plaintiff's refusal to perform his obligation cannot be deemed to have started the contract performance merely because the plaintiff urged the plaintiff to perform his obligation, or the defendant was awarded winning judgment at the court of first instance as to the defendant's refusal to perform his obligation, and the defendant's repayment of the down payment and cancellation of the above contract cannot be deemed to have violated the principle of good faith even if the plaintiff requested the contract termination and the defendant did not pay the remainder of the contract of this case before the contract termination date, in light of the legal principles as alleged in the ground for appeal No. 1.

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)