A. Whether a seller and a purchaser are placed in a simultaneous performance relationship in cases where the date of payment of the remainder is set without providing the seller to perform his/her obligation to pay the remainder, while the seller did not perform his/her obligation to transfer ownership or cancel the right to collateral security (affirmative);

(b) The degree of furnishing the performance of one's own obligation to cancel a bilateral contract on the grounds of non-performance of obligation;

(c) The case holding that it is reasonable to view that the seller's highest demand is excessive, if it is evident that the seller refuses to receive the payment of the original obligation in light of the contents of the highest demand, since the amount of money for which the seller's highest demand to pay together with the balance is not based on the purchaser's burden, and

A. Even if a seller’s obligation to transfer the ownership and cancel the right to collateral security is a prior performance obligation rather than the buyer’s obligation to pay the remainder of the purchase price, as long as both the seller and the buyer did not perform their own obligation and the payment date of the remainder of the purchase price has been excessive, both parties’ obligation should be placed in a simultaneous performance relationship.

B. In a bilateral contract with a simultaneous performance relationship, the person who wants to cancel the contract on the ground of the other party's default shall provide the other party with the performance of his own obligation in the simultaneous performance relationship, and if the other party's act is required in the performance of his obligation, the person shall complete the preparation to perform at any time and notify the other party of the receipt and make it impossible for the other party to go through the delay of performance, and it shall not be sufficient only with the preparation of performance.

C. The case holding that if it is evident that the purchaser refuses to accept only the original obligation in light of the contents of the peremptory notice sent by the seller, the highest price of the seller shall be deemed unlawful as the excessive highest price, if it is the highest price where the seller's demand that the buyer pay the remainder in addition to the remainder of the contract is not based on the basis of the purchaser's burden.

(b)Article 460, Article 536(c) of the Civil Code;

A. Supreme Court Decision 70Da344 delivered on May 12, 1970 (No. 18 ② 22), 80Da268 delivered on April 22, 198 (Gong1980, 1288) / B. Supreme Court Decision 69Da123,1224 delivered on April 14, 1970 (No. 18Da321 delivered on November 24, 198), Supreme Court Decision 81Da634 delivered on November 24, 1987 (Gong1987, 357) / 1980Da32839 delivered on October 14, 1988 (No. 1988, 357) /309 delivered on September 16, 1983 (No. 1984, Nov. 24, 197)

Geum-gu Industrial Co., Ltd., Counsel for the defendant-appellant and one other

Seoul High Court Decision 200Na14888 delivered on August 1, 200

Daegu High Court Decision 90Na4748, 4755 decided September 12, 1991

The judgment below is reversed, and the case is remanded to the Daegu High Court.

Defendant Counterclaim Plaintiff’s ground of appeal

1. Examining the reduced distance between the plaintiff and the defendant (the plaintiff's contractual status of non-party 1) as to the sales contract of this case, the court below did not reach an agreement with the defendant on February 13, 1989 that the defendant purchased the real estate of this case with the price of 3.2 million won, and paid the remaining price of 2.5 million won to the defendant on May 31, 1989, but did not pay the remaining price to the defendant on August 31 of the same year. Meanwhile, the plaintiff, as the seller did not receive a promissorysory note as the security for the payment of remaining price, and the plaintiff did not obtain a consent to disposal of the real estate of this case from the above management corporation as well as the sale contract of this case with the non-party 2. The court below decided that the defendant did not sell the above real estate to the defendant on the ground that the defendant's request for the cancellation of the ownership transfer registration of this case without the consent of the defendant 9.5 billion won.

Under the revised special agreement between the Plaintiff and the Defendant, which is recognized as evidence Nos. 2 and 6, the Defendant agreed to set up a right to collateral security against the Plaintiff as security for the remainder payment obligation and deliver one certificate of seal impression for sale of the Defendant representative director each month from June 1989 to the Plaintiff, upon entering into such special agreement, the Plaintiff and the Defendant entered into an occupancy contract with the Defendant’s consent to disposal before August 31, 1989, as well as entered into an obligation under Article 12(3) and (6) of the Industrial Complex Management Act [this Act is repealed by Article 2 of the Addenda to the Industrial Complex Construction and Factory Construction Act, Law No. 4212, Jan. 13, 1990)]. However, it is anticipated that the Defendant would be able to complete the registration of ownership transfer to the Defendant. However, in light of the Plaintiff’s obligation to pay the remainder payment obligation under the agreement with the Plaintiff and the Defendant’s obligation to suspend the Plaintiff’s ownership transfer registration at latest, it is unreasonable for the Plaintiff’s consent.

However, the court below's decision to the same purport is just, and it is within the limit from July 24, 1989 to August 31 of the same year as the plaintiff's obligation to perform the above obligation. However, as long as both the plaintiff and the defendant did not perform their own obligation and they did not perform their obligation, the plaintiff's both of the defendant were in a concurrent performance relationship (see, e.g., Supreme Court Decision 87Meu1029, Sept. 27, 1989). Thus, the court below's decision to the same purport is without merit and incomplete deliberation, such as a theory of lawsuit, or erroneous determination of facts, probative value of disposal documents, the nature of simultaneous performance, and the principle of good faith, or contrary to the reasoning. There is no error in the misapprehension of legal principles as to the principle of good faith. The argument is without merit.

2. (1) Any person who intends to rescind a contract on the ground of the other party’s default in a bilateral contract with a simultaneous performance relationship shall provide for the other party’s performance of his own obligation, and if the other party’s act is necessary in the performance of his obligation, he shall complete preparations to perform at any time, notify the other party of his intention to receive the preparations, and make the other party go through the delay of performance, and the other party shall not be held to have the preparation for the performance simply (see Supreme Court Decision 69Da123,124, Apr. 14, 197; 85Meu2197, Jan. 20, 1987).

Based on adopted evidence, the court below determined that the plaintiff's declaration of termination of the contract was legally effective on November 16, 199, after five days from the date when the defendant received the above written peremptory notice, and notified the defendant to perform his obligation to pay the balance, and at the same time the defendant did not pay the balance amount of KRW 2.53 million within five days from the date when the defendant did not pay the balance amount of KRW 2.73 million, the sales contract was cancelled without a separate declaration of intention, but the defendant did not perform his obligation to pay the balance within five days, and the court below determined that the plaintiff's declaration of termination of the contract was legally effective on November 16, 199, when five days have passed since the date when the defendant received the above written peremptory notice.

However, according to Gap's evidence No. 10 (Peremptory Notice), the plaintiff can only be aware of the fact that he sent a notice of his establishment [the document required for the application for cancellation of ownership] on Nov. 9, 1989 (the document was kept in ○○○○○○○ Office omitted). It is not acknowledged that the plaintiff kept the document required for cancellation of the right to collateral security and notified it to the defendant. Even according to evidence cited by the court below, it is not recognized that the above plaintiff performed the duty of cancellation of the right to collateral security at the highest time, or that the defendant provided the document required for cancellation of the right to collateral security (the above obligation does not require the defendant's cooperation). Second, even according to Gap's evidence No. 14-14-11 or 11-the power of attorney, the certified judicial scrivener who delegated the procedure for cancellation of the right to collateral security is not only the document required for cancellation of the right to collateral security, but also the document required for cancellation of the right to collateral security and the certificate of completion of the right to collateral security (the title No. 2).3).

Therefore, in this case where the provision of documents required for the registration of cancellation of a right to collateral security has a simultaneous performance relationship with the payment of the balance, even if the plaintiff notified the defendant to pay the balance and cancelled the sales contract on the ground that there is no payment, the effect of termination of the contract may not occur unless the plaintiff prepared documents required for the registration of cancellation of the right to collateral security

This is natural in view of the nature of simultaneous performance.

The judgment of the court below shall not be erroneous for misunderstanding the facts against the rules of evidence or misunderstanding the legal principles on the cancellation of a contract. The grounds for the argument are.

(2) The lower court determined that the Defendant agreed to pay the amount of the special surtax imposed on the Plaintiff regarding the transfer margin accruing from the transfer of the instant real estate through a special agreement for revision between the Plaintiff and the Defendant separately from the purchase price, and that the Plaintiff urged the Defendant to pay the remainder and the special surtax amount of KRW 2,3 million to the Defendant on November 9, 1989.

However, there is no evidence suggesting that there was an express agreement between the parties as to who will be liable for value-added tax on the transfer of a factory in this case, rather than special surtax as at the time of original adjudication, considering the entries in Gap evidence No. 10 (Peremptory Notice) and the amount thereof (as at KRW 2.3 million stated in the confirmatory contract). No additional tax referred to in the special agreement on the modification of Gap evidence No. 2 shall be deemed to refer to the value-added tax on KRW 3 million which the defendant would pay for the name of the fee even according to the testimony of non-party 2 and non-party 3 of the first instance trial or the testimony of non-party 3 of the first instance trial.

As such, if the above amount of 2.3 million won, which the plaintiff notified that the defendant should pay together with the balance, is not sufficient to the extent that the defendant is not liable to pay, and in this case where it is obviously apparent that the defendant would refuse to pay only the original amount of debt in light of the plaintiff's contents of the above peremptory notice, the peremptory notice issued on November 9, 1989 may be deemed unlawful as an excessive peremptory notice (see Supreme Court Decision 87Meu3147, Dec. 13, 198; Supreme Court Decision 89Meu34022, Jun. 26, 190).

Therefore, the above peremptory notice is legitimate, and the judgment of the court below which accepted the plaintiff's claim for the cancellation of contract shall be deemed to have misunderstanding the facts against the rules of evidence or misunderstanding the legal principles on the cancellation of contract.

It is so decided as per Disposition by the assent of all participating Justices on the bench that the judgment of the court below is reversed and the case is remanded to the court below.

Justices Yoon Young-young (Presiding Justice) Park Young-dong Kim Jong-ho