The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. As to the ground of appeal No. 1, where the intention not to perform in advance is expressed as to the cancellation of the contract due to the non-performance, the requirements for the cancellation of the contract are very alleviated in comparison with the cancellation of the contract at the time of the delay of performance because the contract is not required for the peremptory and simultaneous performance, and thus, the intention of refusal of performance should be clearly and ultimately indicated in recognizing implied intention of refusal of performance by taking into account the various circumstances at the time of the contract or after the contract, except in cases where the intention of refusal of performance is explicitly expressed.

(See Supreme Court Decision 2004Da22971 Decided November 9, 2006, and Supreme Court Decision 2010Da77385 Decided February 10, 201). According to the reasoning of the lower judgment, the lower court is not entitled to receive the remainder of six million won from the Plaintiff on behalf of the Defendant, even if D is based on the reasoning of the lower judgment.

Even if D had led to a trade mediation and price adjustment between the Plaintiff and the Defendant from the negotiation stage of the instant sales contract to the conclusion of the contract, and the Plaintiff paid the remainder of KRW 6 million to D in the absence of lawful notification from the Defendant or D. Thus, it is difficult to view that the Plaintiff expressed an explicit intent to refuse payment of the remainder of the instant sales contract solely on the ground that D used the remainder for other purposes regardless of the Plaintiff’s intent, regardless of its intention, without delivering it to the Defendant.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles on non-performance of obligation and non-performance

2. As to the ground of appeal No. 2, this part of the ground of appeal is related.