[1] In a case where Gap, as co-inheritors of forest land, entered into a sales contract for the sale of part of forest land to Eul by specifying it as the object of sale by delegation from other co-owners, the case holding that Gap's obligation to perform the procedure for registration of transfer of ownership as to the object of sale cannot be deemed to have been omitted merely because one of co-owners of forest land is missing

[2] In a case where Gap, as co-inheritors of forest land, concluded a sales contract by specifying part of forest land to be sold to Eul as the object of sale by delegation from other co-inheritors, the case holding that Gap cannot be deemed as bearing the duty of performance prior to the completion of partition registration as to the object of sale prior to the remainder payment date, unless otherwise agreed

[3] In a case where a lawsuit is filed against a part of one parcel of land to claim the performance of the registration of transfer due to the sale or purchase, or where a lawsuit is filed against the simultaneous performance by asserting the performance of the obligation, whether the party asserting such performance must specify the part of the land subject to the obligation and prove that the specific part of the land is the subject matter of sale

[1] Articles 269(1), 546, 563, and 1013(2) of the Civil Act / [2] Articles 105, 536, 544, and 563 of the Civil Act / [3] Articles 389, 536, and 563 of the Civil Act; Article 288 of the Civil Procedure Act

[3] Supreme Court Decision 97Da21383 delivered on September 30, 1997 (Gong1997Ha, 3269)

Plaintiff (Attorney Jeong full-time et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Won, Attorneys Choi Jong-hwan et al., Counsel for the defendant-appellant)

Daegu High Court Decision 2008Na10076, 10083 Decided December 11, 2009

All appeals are dismissed. The costs of appeal are assessed against each appellant.

1. Judgment on the Plaintiff’s grounds of appeal

A. As to the ground of appeal on the power of representation

Examining the reasoning of the lower judgment in light of the record, the lower court determined that the Defendant, as co-inheritors, concluded the instant sales contract with the delegation from Nonparty 1, 2, and 3, who is a co-inheritors, as the representative, did not err by failing to exhaust all necessary deliberations as alleged in the grounds of appeal.

B. As to the ground of appeal on non-performance

In light of the empirical rules or the concept of transaction in a social life, not simply an absolute and physical impossibility, a creditor is unable to expect the realization of the performance of the debtor (see Supreme Court Decision 2000Da22850, Jan. 24, 2003, etc.).

Meanwhile, according to Article 1013(1) of the Civil Act, co-inheritors may divide their inherited property at any time through their agreement. According to Article 269(1) of the Civil Act as applied mutatis mutandis pursuant to Article 1013(2) of the Civil Act, co-inheritors may request the court to divide the inherited property if they did not reach an agreement on the method of division.

In full view of the adopted evidence, the lower court acknowledged the following facts: (a) the Defendant entered into the instant sales contract with the delegation of Nonparty 1, 2, and 3, who is another co-owner; and (b) his share of ownership reaches 9/11; and (c) determined that, as alleged by the Plaintiff, the Defendant’s obligation to perform the procedure for the registration of ownership transfer cannot be deemed to be omitted in a situation where the Defendant’s obligation to perform the procedure for the registration of ownership transfer was impossible, as long as it can be divided by means of litigation, etc., inasmuch as the part of the instant forest land, among the forest land, which is the object of the instant sales contract, was missing by Nonparty 4, who is a co-owner of the instant forest, and cannot be divided into two thousand square meters

Meanwhile, according to the records of this case, the non-party 4, prior to the sales contract of this case, had a house in around 2004 and had been missing for five years, filed a request for adjudication of disappearance with the Daegu District Court on July 30, 2009, which was before the closing of argument of this case. If the request was accepted and the declaration of disappearance was rendered upon acceptance of the request, it shall be regarded as deceased at the expiration of five years, and his heir will succeed to his share in the subject matter of this case. In light of the above, it is possible to divide the subject matter of this case by agreement with the defendant and the non-party 4's heir without going through the method of litigation, etc. In addition, if the non-party 4's share is succeeded to in whole among the co-owners who delegated the sale contract of this case by the defendant and the non-party 4, the plaintiff can immediately file a request for registration of transfer of the subject matter of this case with the defendant and the above co-owners on the ground of the fact certificate (Evidence No. 2-1 through No. 2-4).

Therefore, examining the above circumstances and the reasoning of the lower judgment in light of the aforementioned legal principles and relevant provisions, the lower court did not err in its judgment by misapprehending the legal doctrine on non-performance, etc. as alleged in the grounds of appeal.

C. As to the ground of appeal on the violation of the duty of preference performance

The court below rejected the plaintiff's assertion that the defendant violated the duty to complete the partition registration of the subject matter of this case under the name of the defendant prior to the remainder payment period, on the ground that the defendant did not bear the duty to complete the partition registration of the subject matter of this case on the ground that he did not bear the obligation to complete the partition registration of the subject matter of this case under the name of the defendant prior to the remainder payment period on the ground that the plaintiff did not have an agreement to complete the partition registration of the subject matter of this case before the remainder payment period, on December 30, 2005, on the ground that the defendant violated the duty to complete the partition registration of the subject matter of this case prior to the remainder payment period.

According to the reasoning of the judgment below and the evidence duly admitted, the subject matter of this case is about 2,00 square meters from the forest of this case, and the special contract of this case provides that "the land purchased by the purchaser after the division shall be responsible for the purchaser." In this regard, the Plaintiff, who is the purchaser, agreed to bear the cost of the partition procedure. Meanwhile, in order to register a part of the divided land by dividing one parcel of land, the competent authority in the cadastral record, first of all, shall conduct a cadastral survey, and the parcel number, land category, boundary, or coordinates and area of each parcel of land shall be determined and registered in the cadastral record (see Supreme Court Decisions 83Meu135, 1136, Mar. 27, 1984; 2001Da20103, Sept. 24, 2002, etc.).

In light of the above, in order to conduct the registration of transfer pursuant to the instant sales contract to specify the subject matter of the instant forest, which is a part of the instant forest, it is necessary to specify the subject matter of the instant sale and divide the subject matter. However, if a separate due period is not determined in the instant sales contract as to the registration of transfer, it would be possible to allow the registration of transfer by taking the procedure of division during the due date (see Supreme Court Decision 91Da38341 delivered on July 24, 1992). If the registration of transfer is impossible because the purchaser is not in compliance with the procedure of division and the registration of transfer is refused to pay the purchase price on the grounds of non-performance of the registration of transfer in relation to the payment of the purchase price, it is reasonable to deem that it is not necessary to interpret the procedure as the obligation to pay the Plaintiff prior to the payment of the purchase price.

In addition, the issue of whether the subject matter of the instant sales is specific is about the interpretation of the instant sales contract. However, the expression "2,00 square meters towards mountain is not sufficient to specify the subject matter to the extent that the registration of the subject matter of the instant sales is possible. Thus, in order to divide the subject matter of the instant sales, the Plaintiff and the Defendant should first clarify the criteria, such as the boundary line, etc. to the extent that the survey is possible through consultation, etc. based on the agreement and special agreement on the subject matter of the instant sales, and it should be prior to the Plaintiff’s inspection under the Plaintiff’s cost burden. Therefore, the Plaintiff must undergo consultation and procedures to specify the subject matter of the instant sales to the extent that it is possible to register the subject matter, and it is impossible to register the transfer without going through such consultation. Therefore, it is reasonable to deem that the Defendant cannot file for the registration of division and the registration of transfer premised on it

Examining the reasoning of the judgment below in light of the above legal principles and circumstances, there are some deficiencies, but the conclusion of the court below which did not accept the plaintiff's assertion that the defendant violated the duty of preferential performance which completed the registration of subdivision on the subject matter of sale in this case before the remaining payment date, and there is no error of law by misunderstanding the legal principles as to the duty of preferential performance,

D. As to the ground of appeal on simultaneous performance defense

The court below held that the plaintiff's obligation to pay the balance and the obligation to pay ownership transfer registration procedure on the subject matter of the sale of this case are in a simultaneous performance relationship. However, the court below held that the plaintiff's simultaneous performance order cannot be specified on the ground that the plaintiff clearly expresses that he did not intend to apply for survey appraisal to specify the subject matter of the sale of this case in spite of the demand to prove that the plaintiff had no intention to do so. Thus, the plaintiff's simultaneous performance defense as to the counter-performance

In a case where a lawsuit is filed to claim the performance of the obligation of registration of transfer due to the purchase and sale of a part of a parcel of land or a defense for simultaneous performance is filed by asserting the performance of the obligation, the party asserting such performance must specify the part of the land subject to the obligation and bear the responsibility to prove that the specific part of the land is the subject of the sale (see Supreme Court Decision 97Da21383, Sept. 30, 1997, etc.). However, with respect to the subject of the sale in this case, the registration of transfer cannot be made under the current state because the boundary line is not specified to the extent possible to register the subject of the sale in this case, and it must be done prior to the examination under the Plaintiff’s cost burden prior to the registration of transfer. In addition, clarifying the subject of the sale in this case subject to the obligation of registration of transfer can be made through the procedures such as consultation with the Plaintiff and the Defendant who is the contracting party, and thus, the Plaintiff’s inside of the Republic of Korea does not constitute an obstacle to Nonparty 4’s absence.

2. Judgment on the defendant's appeal

According to Articles 429 and 431 of the Civil Procedure Act, the Re-appeal Court shall investigate and determine only the grounds of appeal on the statement in the grounds of appeal filed within the submission period.

However, the Defendant did not state the grounds for objection in the petition of appeal, and did not submit the appellate brief within the deadline for submitting the appellate brief. In addition, the Defendant submitted the appellate brief on February 17, 2010, and the briefs on March 17, 2010, respectively, but the arguments in the documents submitted after the deadline for submitting the appellate brief are not legitimate grounds for appeal.

3. Conclusion

Therefore, all appeals are dismissed, and the costs of appeal are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Shin Young-chul (Presiding Justice)