Where there is a special agreement that the seller of a sales contract may cancel the sales contract if he/she compensates for the down payment, the amount of the down payment he/she has received, and the expenses paid by the buyer, whether the buyer may cancel the sales contract by the special agreement

In the conclusion of a sales contract, even if the seller raises an objection, the buyer may cancel the sales contract by compensating for the amount of the down payment and the expenses paid by the buyer and cancelling the sales contract, he/she cannot cancel the contract according to the above special agreement after the buyer deposits the remainder payment with the seller's refusal to receive the remainder payment at the due date.

Articles 543, 565, and 590 of the Civil Act

Plaintiff

Defendant

Busan District Court (74 Gohap1129)

The appeal is dismissed.

Expenses for appeal shall be borne by the defendant.

The defendant will implement the procedure for the registration of ownership transfer to the plaintiff on May 28, 1974 with respect to the 980 1,308 Dui-ri, Ulsan-gun, Ulsan-do.

Litigation costs shall be borne by the defendant.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

On May 28, 1974, the Plaintiff entered into a sales contract with the Defendant to purchase KRW 1,308 (hereinafter referred to as "the land in this case") 260,000 for the purchase price of KRW 150,00,000, and the remaining amount is paid to the Defendant for the down payment on that day, and there is no dispute between the parties. According to the evidence No. 3 without dispute over the establishment, and the testimony of Non-Party 1 and Non-Party 2 of the original instance court, according to the testimony of Non-Party 1 and Non-Party 2 of the first instance court, the Defendant refuses to receive the remaining amount after the above sales contract was concluded, and the Plaintiff cannot be acknowledged to have deposited the remaining amount on July 26, 1974, and there is no counter-proof evidence otherwise.

However, the defendant asserts that the above sales contract was cancelled because it was an expression of intent by fraud made by the plaintiff using a mongical state of drinking alcohol to the defendant. However, the non-party 3's testimony by the non-party 1 of the court below, which is consistent with this, is hard to believe in light of the testimony by the non-party 1 of the above witness, and there is no other evidence

In addition, the defendant asserts that the above sales contract was null and void because the defendant did not prepare recovery costs for cultivating the instant land which was buried due to the disaster of the 1974.5.28 years from the time, using the defendant's old situation where the 2,00,000 won of the instant land was sold in gold 260,000 won at the market price, and this is a contract which has considerably lost fairness. Accordingly, the defendant asserted that the testimony of the non-party 3 and non-party 4 of the court below, which correspond to the above, is not trusted in light of the testimony of the non-party 1 and the non-party 2 of the above witness, and according to the appraisal report of the non-party 5 of the appraiser non-party 1 and the non-party 5, the appraisal price calculated retroactively from the present market price at the time of May 28, 1974, and the above appraisal price at the market price at KRW 1,373,00,000 is also insufficient to accept the above appraisal price at the point of view.

In addition, the defendant asserts that the plaintiff did not pay the remaining amount at the due date of the payment of the remaining amount, and that the above contract was cancelled on August 8, 1974, but there was a defendant's obligation to perform the procedure of registration of transfer of ownership to the land of this case, which is related to the above obligation to pay the remaining amount, and there is no proof that there was a notification of the contract cancellation, and therefore the above assertion cannot be recognized as a legitimate cancellation of contract. Therefore, there is no reason

Finally, the defendant, in this case, has an objection against the seller, has a special contract allowing the cancellation of the contract at any time when he compensates for a double of the expenses for restoration and the down payment. Further, on September 30, 1974, the plaintiff set the amount of KRW 1,280,000 out of this money as KRW 1,280,000, and on October 31 of the same year, the remaining amount of KRW 500,000 out of this money was paid as of October 22 of the same month and agreed to repurchase the above money, but the defendant refused to accept the above money as of November 19, 1975, and there is no reason to believe that the plaintiff's claim for the cancellation of the contract is groundless, but there is no reason to believe that the plaintiff's claim for the cancellation of the contract under the special contract for the restoration of the land before the expiration of the contract and the purport of the non-party 1's testimony for the cancellation of the contract.

Therefore, the defendant is obligated to implement the procedure for the transfer registration of ownership of the land to the plaintiff. Therefore, the plaintiff's claim of this case seeking its implementation is justified, and the defendant's appeal is without merit. Therefore, it is so decided as per Disposition by the application of Articles 384, 95, and 89 of the Civil Procedure Act.

Judges Lee Jong-dae (Presiding Judge)