[1] The legal relationship in a case where a seller, while selling and buying a mining right, has registered the transfer of a mining right in the name of a seller and a buyer in order to secure a buyer’s obligation to pay the purchase price, and the buyer’s failure to pay the purchase price is cancelled

[2] In a case where a seller files a lawsuit seeking restitution by asserting the cancellation of an agreement on the grounds of a buyer’s non-payment of the purchase price, whether the delivery of a copy of the complaint may be deemed to have been a peremptory notice for the payment of the purchase price

[1] In a case where, while selling and buying a mining right, a seller is deemed to have registered the transfer of a mining right in the name of the buyer and the buyer in order to secure the buyer's obligation for payment of the purchase price, and thus, a partnership relationship with respect to a mining right is deemed to have been established between them pursuant to the provisions of law. If the buyer's obligation for payment of the purchase price is terminated due to the buyer's default, the partnership relationship with respect to a mining right arising from the joint mining right registration completed on the basis of the contract cannot be maintained any longer. In such a case, barring any special circumstance, the seller may request the buyer to withdraw from the partnership relationship with respect to

[2] Where a seller files a lawsuit seeking restitution by asserting the cancellation of an agreement on the ground that he/she did not pay the purchase price to the buyer in the complaint, the seller shall be deemed to have given notice of the payment of the purchase price by delivery of the copy of the complaint, unless the seller specifically stated the purport of refusing to receive the purchase price in the complaint, and if the purchaser did not pay the purchase price by the expiration of a reasonable period, the seller may rescind the sales contract.

[1] Articles 19 and 34 of the Mining Industry Act; Articles 543, 544, 716, and 720 of the Civil Act / [2] Article 544 of the Civil Act

[1] Supreme Court Decision 95Da43464 delivered on January 26, 1996 (Gong1996Sang, 760) / [2] Supreme Court Decision 89Meu11685 delivered on January 12, 1990 (Gong190, 465)

Plaintiff (Law Firm General Law Office, Attorney Choi Gyeong-sung et al., Counsel for plaintiff-appellant)

Defendant 1 and two others (Attorney Cho Hong-soo, Counsel for the defendant-appellant)

Seoul High Court Decision 2001Na41850 delivered on April 3, 2002

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. The facts acknowledged by the court below in full view of the evidence of the employment are as follows.

A. The original mining right holder of the mining right indicated in the attached Form of the judgment of the court below (hereinafter referred to as the "mining right of this case") was the non-party. The mining right of this case was registered under the joint name of the plaintiff and the non-party on August 29, 1998, and the non-party was the sole mining right holder of this case upon the registration of withdrawal on September 29, 1998.

B. On November 25, 1998, the Plaintiff registered the mining right of this case under the joint name of the Plaintiff, the Defendant, etc. and five including the Defendant, etc. until the Defendant, etc. paid KRW 300 million to the Plaintiff and paid KRW 300 million to the Plaintiff. If the Defendant, etc. fully pay the said money to the Plaintiff, the Plaintiff agreed to withdraw from the joint mining right holder, and the Plaintiff, the Defendant, etc. completed the registration of transfer under the joint name of five persons pursuant to the above agreement on November 26, 1998.

C. The Plaintiff and the Defendant, etc. paid KRW 300 million to the Plaintiff by April 30, 1999 with respect to the payment period of KRW 300 million under the above agreement. If the Defendant, etc. fails to pay the full amount by the above date, at least KRW 200 million shall be paid by the date. (2) The remaining amount shall be paid by September 30, 1999 with the interest of KRW 5% per month, and (3) if the Defendant, etc. fails to comply with the above (2), the remaining amount shall be paid by December 20, 199.

D. The defendant et al. did not pay all the money under the above agreement to the plaintiff.

2. The judgment of the court below

The court below first determined that the above agreement between the plaintiff and the defendant et al. invested in the mining right of this case, and the defendant et al. was the partnership agreement with the defendant et al. to contribute KRW 300 million, and determined that the plaintiff et al., a partner of the defendant et al., can claim dissolution of the partnership unless the defendant et al. do not perform the investment obligation, and the plaintiff et al., a partner performing the investment obligation has no specific remaining business under the liquidation procedure in this case, and thus, the plaintiff et al., a partner of the plaintiff et al. can immediately claim the return of the property invested.

In addition, when the Defendants fail to pay KRW 300 million in the above agreement, the Plaintiff agreed to hold 30% of the mining right of this case. The Defendants agreed that the ownership of the mining right of this case cannot be changed until the above amount is paid in full, and thus, they cannot seek withdrawal from the Defendants. The court below rejected the Defendants’ assertion that the Defendant, etc., under the agreement of this case, paid at least KRW 200,000,000 among the above KRW 300,000 until April 30, 199, and only in such a case, the Plaintiff acquired the mining right of this case’s 30% and the remaining amount was paid until December 20, 199. The Defendants were liable for not changing the ownership of the mining right of this case to the Defendant, etc., and the Defendants cannot be viewed to have paid the money to the Plaintiff under the circumstance of dissolution and non-payment of the above special agreement as well as the above agreement as of April 30, 199.

3. Judgment of party members

A. The lower court determined that the agreement between the Plaintiff, the Defendant, etc. and the Defendant, etc. had the nature of the above agreement between the Plaintiff, the Defendant, etc., and the Defendant, etc., invested 300 million won in the instant mining right, to form an association and jointly operate the business. However, according to the facts acknowledged by the lower court, the agreement between the Plaintiff and the Defendant, etc., decided to sell the instant mining right at KRW 300 million to the Defendant, etc., and the Plaintiff, etc., in advance and in order to secure the receipt of KRW 300 million in the payment, shall be deemed to have made registration for the transfer of the mining right in the joint mining right under the name of five remaining joint mining right holders until the payment is made in full. As the Plaintiff and the Defendant, etc. completed registration for the transfer of five joint names with respect to the instant mining right pursuant to the above agreement, it shall be deemed that the agreement was concluded between them pursuant to Articles 34(1) and 19(6) of the Mining

In a case where a seller sells and purchases mining rights in advance, while completing the registration of the transfer of mining rights, in order to secure a buyer’s obligation for the payment of the purchase price, and thus, a partnership relationship with respect to mining rights between the seller and the buyer is deemed to have been established pursuant to the provisions of law. If the buyer’s default on the buyer’s obligation for the payment of the purchase price is terminated, the partnership relationship with respect to mining rights arising from the joint mining right registration completed pursuant to the contract cannot be maintained any longer. In such a case, barring any special circumstance, the seller may request the buyer to withdraw from the partnership relationship with respect to mining rights in order to recover from the buyer’s right under the sole name

B. According to the records, the plaintiff asserted the cancellation of the above agreement and filed a claim for the cancellation of the registration of transfer of the mining right of this case with the restoration of its original state, on the ground that the plaintiff did not pay the purchase price against the defendant, etc... The plaintiff's claim for the cancellation of the registration of transfer of the mining right of this case can be seen as having been notified of the payment of the purchase price by delivery of the copy of the complaint, unless the purport of refusing to receive the purchase price is included in the complaint, and if the purchaser did not pay the purchase price within a reasonable time limit, the seller can be deemed to have rescinded the sales contract (see Supreme Court Decision 89Meu1685, Jan. 12, 1990, etc.). Thus, as long as the plaintiff continued to claim that the plaintiff would cancel the above sales contract, the above sales contract between the plaintiff and the defendant, etc. as long as he had not paid the purchase price until the closing of argument of the court below in June 200. Therefore, the plaintiff's claim against the defendants to withdraw from the mining right of this case.

As to this, the Defendants asserted that the Plaintiff may not cancel the sales contract against the Defendants or seek the withdrawal of the Defendants, on the ground that, among the sales contract of this case, the special agreement that the Plaintiff would have the right of 30% of the mining right of this case in the event that the Defendant et al. fails to pay the Plaintiff the unpaid amount until September 30, 1999 and the obligation with the interest of 5% per month, and that the Plaintiff could not change the ownership relationship with respect to the mining right of this case until the full payment of the purchase amount was made.

According to the records, if the defendant et al. fail to pay the above 1.C., it was true that the plaintiff had the right of 30% of the mining right of this case. However, even if the plaintiff has the right of 30% of the mining right of this case, the defendant et al. should pay the unpaid amount not later than December 20, 199, but also the defendant et al. should pay the unpaid amount by December 20, 199. Thus, the above special agreement can not be deemed as a promise or an agreement to substitute the payment of the purchase price as the transfer of the right of this case's 30% right in substitution for the payment of the purchase price, or to waive the right to cancel the contract. In addition, according to the records, the contents of the special agreement on change in the form of mining right claimed by the defendant et al. cannot be changed for any reason until the plaintiff reimburses the plaintiff's amount of investment, and the special agreement is not clear that the defendant et al. is not jointly liable for the change in the form of mining right of this case.

C. Thus, the court below's decision that held that the defendant et al. deemed the obligation to pay KRW 300 million to the plaintiff as an investment obligation to the partnership that is not a sales contract but a sales price obligation, based on the nature of the above agreement between the plaintiff and the defendant et al., was erroneous in the misapprehension of legal principles under Articles 34 (1) and 19 (6) of the Mining Industry Act, but the conclusion of the court below that accepted the plaintiff's claim for the execution of the procedure to withdraw from mining right against the defendants is justifiable, and therefore,

4. Therefore, all appeals are dismissed, and the 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 Zwon (Presiding Justice)