[1] The case holding that where a local government and a bank which was a dispute, did not exercise a claim to resolve the dispute, the local government's cultural facilities construction cost shall be borne by the local government instead of exercising the claim, but the method of payment of the cost shall be determined by mutual agreement, the agreement

[2] In a case where an uncertain fact occurs, whether the period for performance becomes due even if the occurrence of such fact becomes impossible (affirmative)

[1] The case holding that where a local government and a bank which was a dispute, did not exercise a claim to resolve the dispute, the local government's cultural facilities construction cost shall be borne by the local government instead of exercising the claim, but the payment method of the cost shall be determined by mutual agreement, the bank shall pay the expense to the local government, and the time of the performance shall be determined by mutual agreement with the local government

[2] In a case where the parties have determined the period for performance when the occurrence of uncertain facts occurs, the period for performance shall be deemed to have arrived when not only the occurrence of such fact but also the occurrence of such fact becomes impossible.

[1] Articles 152 and 731 of the Civil Act / [2] Article 152 of the Civil Act

[2] Supreme Court Decision 88Meu10579 decided Jun. 27, 1989 (Gong1989, 1147)

Bupyeong-gu Incheon Metropolitan City (Law Firm Law, Attorneys Jin-young et al., Counsel for the plaintiff-appellant)

Defendant 1 and Defendant 1 other than the bankruptcy trustee of the bankrupt Bank, the bankruptcy trustee of the bankrupt Bank, the Nonparty’s taking over the lawsuit

Seoul High Court Decision 2000Na46902 delivered on May 31, 2001

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. The judgment of the court below

According to the reasoning of the judgment of the court below, the court below determined that on March 5, 1998, the Gyeonggi Bank shall bear at least 3 billion won for the establishment of the plaintiff's cultural facilities and mutual consultation between the plaintiff and the Gyeonggi Bank in order to resolve disputes arising from the difference between the settlement inspection of the plaintiff council and the settlement of accounts of the Gyeonggi Bank, which was in charge of the plaintiff's revenue and expenditure business as the plaintiff's Gu Treasury (hereinafter referred to as the "Seoul Bank"), and on October 26 of the same year between the plaintiff and the Gyeonggi Bank, which was in charge of the plaintiff's revenue and expenditure business, and on March 26, 1993, the Gyeonggi Bank shall bear at least 3 billion won for the establishment of the cultural facilities under the agreement between the plaintiff and the Gyeonggi Bank, and on October 26 of the same year, the plaintiff shall be declared bankrupt as the Incheon District Court of Incheon on October 26 of the same year. The plaintiff reported at least 3 billion won for the establishment of the cultural facilities under the agreement between the plaintiff and the Gyeonggi Bank.

2. Regarding ground of appeal No. 1

According to the records, in order to resolve disputes with the plaintiff, the Gyeonggi Bank concluded a settlement agreement with the plaintiff at least three billion won to support the establishment of cultural facilities of the plaintiff, instead of having the plaintiff not exercise the plaintiff's right to claim against the Gyeonggi Bank according to the result of the settlement of accounts in 1993. Therefore, the grounds of appeal denying the establishment of the agreement of this case cannot be accepted.

In addition, the purport that the payment method of the support fund shall be made after mutual consultation with the Plaintiff, is that the Gyeonggi Bank shall be paid at least three billion won to the Plaintiff, and the payment period shall be determined at the time when mutual consultation with the Plaintiff is reached. Accordingly, the lower court erred by misapprehending the legal doctrine on the terms and conditions, i.e., an indefinite period. Accordingly, according to the records, the Gyeonggi Bank shall be deemed to have become unable to expect the Gyeonggi Bank to perform its obligations under the instant agreement through mutual consultation between the parties, in light of the circumstances leading up to the deterioration of its financial status and immediately after it was declared bankrupt. Thus, it shall be deemed that the agreement under the instant agreement was concluded as impossible until the bankruptcy is declared late.

Meanwhile, in a case where the parties have determined the period for performance when the occurrence of uncertain facts occurred, as well as when the occurrence of such fact is impossible, the period for performance should be deemed to have come due (see, e.g., Supreme Court Decision 88Meu10579, Jun. 27, 1989). Thus, the Plaintiff is deemed to have held a claim against the Gyeonggi Bank amounting to three billion won at the time the bankruptcy is declared, and therefore, the lower court’s acceptance of the Plaintiff’s claim for confirmation of the claim is justifiable

3. Regarding ground of appeal No. 2

As seen above, the lower court’s determination, which deemed that the nature of an assistant officer under the instant agreement ought to be deemed to have been infinite but should be deemed to have been fulfilled in accordance with the good faith principle, was erroneous by misapprehending the legal doctrine on the terms and conditions, but this does not affect the conclusion of the judgment, and thus, the ground of appeal pointing this out

3. Conclusion

Therefore, the 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 Yoon Jae-sik (Presiding Justice)