(a) The case where one party in a bilateral contract is deemed to have expressed his intention to refuse performance of obligation;

B. Whether recognizing the termination of a contract violates the principle of pleading in case where it can be deemed that the principal facts necessary for the claim for the cancellation of contract indirectly are asserted

C. In the case of “A”, whether the termination of the contract requires the fulfillment of his opposite obligation

A. The case holding that it is reasonable to view that the buyer expressed his/her intent to refuse the performance of the obligation to pay the price under the renewal contract, in light of the circumstances that the buyer strongly denied the validity of the renewal contract itself after the conclusion of the renewal contract, and the buyer demanded the seller to continue to perform the obligation to transfer ownership as to the whole real estate, which is the contents of the original contract, rather than the obligation under the terms of the renewal contract, and that the buyer has expressed his/her intent to refuse the performance of the obligation to pay the price pursuant to the renewal contract for more than three years

B. In cases where one of the parties clearly expresses his/her intent not to perform his/her obligation in a bilateral contract, it is the fact that the other party has delayed performance, that the debtor clearly expresses his/her intention not to perform his/her obligation in advance, and that the other party has expressed his/her intention not to perform his/her obligation. As such, in cases where the party asserted a rescission of the contract and notified the performance of the contract within a reasonable period, but the party asserts that he/she did not perform his/her obligation within the said period, it shall be deemed that the party clearly expressed his/her intention not to perform his/her obligation in advance in advance, and that the termination of the contract is lawful, which shall be deemed to be in violation of the principle of pleadings. However, such assertion by the parties shall

C. In a case where there are objective reasons to deem that the buyer performed the duty to pay the remainder and expressed in advance that he did not intend to receive the registration of transfer of ownership, the contract may be rescinded on the grounds of the other party’s delay of performance even if one of the parties did not provide his own debt, barring any special circumstances to deem that the buyer may reverse the contract. In such a case, the seller does not demand that the seller provide the counter-performance even by oral offer for the purpose of making the buyer’s delay of performance.

(b)Article 544(b) of the Civil Procedure Act;

A. Supreme Court Decision 90Da8374 delivered on March 27, 1991, 91Da15584 delivered on February 28, 1992. Supreme Court Decision 69Da1326 delivered on September 30, 1969, Supreme Court Decision 85Meu1046 delivered on May 26, 1987. Supreme Court Decision 93Da7204 delivered on September 24, 1993

[Judgment of the court below]

[Defendant-Appellee] Defendant 1, et al., Counsel for defendant-appellee

Seoul High Court Decision 93Na26269 delivered on February 16, 1994

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. The court below acknowledged that the plaintiff's remaining payment period of 0,00 won was 132,132,00 won for the real estate of this case as stated in the judgment that the non-party 2 and the non-party 1 had already been registered as the members of the clan on August 16, 1982, and that the non-party 2's remaining payment period was 0,000 won for the plaintiff's remaining payment period of 122,132,00 won for the plaintiff's remaining payment period of 10,000 won for the plaintiff's remaining payment period of 0,000 won for the plaintiff's remaining payment period of 20,000 won for the plaintiff's new payment period of 10,000 won for the plaintiff's new payment period of 20,000 won for the above real estate after the plaintiff's initial payment period of 10,000 won for the plaintiff's new payment period of 30,000 won for the above real estate.

2. In a bilateral contract where one of the parties clearly expressed his/her intention not to perform his/her obligation in advance, the other party may rescind the contract without a peremptory notice of performance or providing for the performance of his/her own obligation, and whether or not he/she has expressed his/her intention not to perform such obligation should be determined by taking into account the parties' behavior and specific circumstances before and after the contract execution (see Supreme Court Decision 91Da15584, Feb. 28, 1992). As examined in the above facts acknowledged by the court below, the plaintiff strongly denied the validity of the contract after the conclusion of the contract, and as such, the plaintiff demanded the defendant clan to continue to perform the duty not to perform the duty to transfer ownership on the whole of the real estate of this case, which is not a duty to pay the original contract, and it is reasonable to view that the plaintiff expressed his/her intent not to perform the duty to pay the payment obligation under the renewal contract of this case for more than three years after the conclusion of the contract, and therefore, the decision of the court below is justifiable and without merit.

3. Where one of the parties clearly expresses his/her intent not to perform his/her obligation in a bilateral contract, the fact that the other party has delayed performance, the fact that the debtor clearly expresses his/her intention not to perform his/her obligation in advance, and the fact that the other party expressed his/her intention not to perform his/her obligation within a reasonable period of time. Thus, in cases where the party asserts that he/she did not perform his/her obligation within a reasonable period of time, and where the party asserts that he/she did not perform his/her obligation within the said period of time, it shall be deemed lawful by recognizing that the debtor who did not perform his/her obligation clearly expressed his/her intention not to perform his/her obligation in advance is in violation of the principle of pleadings. However, such assertion is deemed to be in violation of the principle of pleading, but it shall be deemed that there was an assertion not only where the party's direct statement was made, but also where it can be deemed that the party's overall observation and indirect assertion was made (see, e.g., Supreme Court Decisions 85Meu1046, May 26, 1987.

However, according to the records, the defendants' attorney at the court of first instance stated on December 14, 192 on the date for pleading of December 15, 1992, stated "the defendant clan did not appear to have performed a contract for a considerable period of time, as well as that the plaintiff did not have any contact, so it cannot be waited any longer," and the court of first instance found the facts that the plaintiff expressed his intention not to perform the obligation under the renewal contract, and based on them, decided on the validity of the termination of the contract in this case. The plaintiff's attorney at the court of first instance stated on December 26, 1993 in the preparatory document of December 13, 1993, "this first instance judgment is just, but because the creditor did not provide the obligation in accordance with the contents of the obligation, it should not be viewed that the defendant's right to defense of simultaneous performance should not be lost even if he did not have any reason to prove that the defendant's testimony was in violation of the law of first instance as the witness's right to pleading of this case."

4. In the instant case, in a case where there are objective reasons to deem that the real estate purchaser performed the obligation to pay the remainder and expressed in advance that he did not intend to acquire the registration of transfer of ownership, a contract may be rescinded on the grounds of the other party’s delay of performance even if one of the parties did not provide the other party with the performance of his obligation (see Supreme Court Decision 93Da7204, Aug. 24, 1993). Barring any special circumstances to deem that the buyer may reverse this, it shall not be deemed that even in such a case, the seller may not be required to provide the seller with the performance of his opposite obligation even by oral offer for the purpose of making the buyer delayed the performance. The grounds for appeal going against this Opinion are without merit.

5. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the plaintiff-Appellant. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Jong-chul (Presiding Justice)