[1] The degree of preparation for the performance of one party's own obligation that the other party has to prepare for the performance of a bilateral contract after the other party has been absent from delay of performance due to the provision of performance

[2] The case holding that the peremptory notice for a seller's performance is legitimate for the occurrence of right of rescission, if the seller purchased and stored the certificate of deposit with the balance provided by the buyer after the seller was delayed due to the seller's non-performance of obligation

[1] Where one of the parties to a bilateral contract offers performance only once during the due date and thereby causes delay in the performance of the other party, a party who gives notice of performance under the principle of good faith shall continue to perform his/her obligation, even if the other party does not need to continue to perform his/her obligation, and the right to cancel the contract is extinguished if the other party provides performance or performance within the highest period, so the other party is prepared to receive the other party's performance and to perform

[2] The case holding that if the buyer of real estate purchased and kept the certificate of deposit with the remaining money which has been actually provided as the result of demanding the seller to perform his/her obligation when the seller was unable to perform his/her duty of explanation because the seller failed to perform his/her duty of explanation on the date of payment of the remaining money, and the buyer expressed his/her intention of rescission in advance to the seller on the condition that the seller has not performed his/her duty of explanation within a reasonable period of time, and at the same time, he/she has prepared to perform his/her obligation with the remaining money which he

[1] Article 544 of the Civil Code / [2] Article 544 of the Civil Code

[1] [2] Supreme Court Decision 81Meu1283, 1284 decided Jun. 22, 1982 (Gong1982, 687), Supreme Court Decision 96Da17738 decided Jul. 30, 1996 (Gong1996Ha, 2658) / [1] Supreme Court Decision 85Da2197 decided Jan. 20, 1987 (Gong1987, 357), Supreme Court Decision 94Da94565 decided Oct. 11, 1994 (Gong194Ha, 2962)

Plaintiff (Counterclaim Defendant) (Attorney Kim Jong-ju, Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Attorney Park Tae-young, Counsel for plaintiff-appellant)

Seoul High Court Decision 95Na28061, 28078 delivered on July 4, 1996

The appeal is dismissed. The costs of appeal are assessed against the plaintiff (Counterclaim defendant).

We examine the grounds of appeal.

The court below found that the defendant (Counterclaim plaintiff, hereinafter the defendant) purchased a certificate of deposit that can be immediately commercialized with the plaintiff on November 1, 1993 after the expiration date of the sales contract and demanded the plaintiff to express the real estate of this case on October 30, 1993, which was the due date for the delayed payment of the sales contract of this case, and offered the plaintiff (Counterclaim defendant, hereinafter the plaintiff) to the Sung Chang Chang real Estate Office that arranged the above sales contract, but the plaintiff could not express the real estate of this case due to the tenant's problem and failed to pay the remaining amount, and then the plaintiff did not pay the remaining amount after he purchased the certificate of deposit that can be immediately commercialized with the above remaining amount after the expiration date of this contract. In light of the records, the court below's fact-finding is justified and there is no violation of the rules of evidence such as litigation, incomplete deliberation, and violation of the rules of evidence.

Furthermore, the court below acknowledged on November 1, 1993 that the plaintiff could not express the real estate of this case at the above remaining payment date and did not pay the remaining amount to the plaintiff again, and then purchased a certificate of deposit that can be immediately commercialized with the above remaining payment date, which the plaintiff tried to pay to the plaintiff on November 1, 1993, and continued to deposit it into the defendant's Japanese Investment Bank passbook, and urged the plaintiff to do so, but the plaintiff did not express his intention because the plaintiff failed to produce the tenant thereafter, and the defendant sent a notice to the plaintiff on March 16, 1994 that the above sale contract was terminated, as well as the above sale price already paid and damages arising from the above late payment date, and that the plaintiff reached the plaintiff for a considerable period of time. Thus, the court below determined that the defendant did not perform his duty to cancel the sale contract at the same time because the plaintiff failed to perform his duty to notify the tenant within the reasonable period of time due to the delayed performance of duty to cancel the contract.

If one of the parties to a bilateral contract offers performance only once during the due period and makes the other party enter into a delay of performance, it is not necessary to continue to provide performance under the principle of good faith, and even if the other party does not have to do so, the right to cancel the contract is extinguished if the other party provides performance or performance within the highest period, and thus it is prepared to the extent that the other party can receive the other party's performance and perform his/her obligation (see Supreme Court Decision 81Meu1283, 1284, Jun. 22, 1982). Thus, in this case, the facts acknowledged by the court below as legitimate in this case, if the defendant purchases the certificate of deposit as the remaining amount which the court has actually provided for the performance to the plaintiff and keeps it as a legitimate peremptory notice for the right to cancel the contract, the decision of the court below is justified and there is no violation of law such as violation of precedents and misunderstanding of legal principles as to the cancellation of the contract. All of the precedents cited in this case are without merit.

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

Justices Lee Don-hee (Presiding Justice)