2010Da77378 Registration of cancellation of ownership preservation

Plaintiff:

Law Firm Seo-gu (Attorneys Lee Jae-do et al., Counsel for the plaintiff-appellant)

Defendant:

Law Firm Barun (Attorneys Cho Ho-chul et al., Counsel for the plaintiff-appellant)

Chuncheon District Court Decision 2009Na4347 Decided August 27, 2010

February 10, 201

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court Panel Division.

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

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below acknowledged the facts of the judgment based on the employment evidence, and determined that the plaintiff was the owner of the land of this case as the plaintiff purchased the land of this case on his own account, and that the building of this case was completed as the plaintiff completed the construction of the building at his own effort and cost,

In light of the records, the Plaintiff appears to have partly used the funds of the Ywon Construction Co., Ltd. in the process of paying the purchase price of the instant land and the construction cost of the construction of the instant building. However, this is merely a matter to be settled between the Plaintiff and the Ywon Construction. Such circumstance alone is insufficient to deny that the Plaintiff is the owner of the instant land and the original purchaser who completed the instant building.

Therefore, the decision of the court below on the owner of the land and building of this case is just and there is a violation of the legal principles as to the owner of real estate or the rules of evidence.

No error may be found.

2. Regarding ground of appeal No. 2

A. In a case where both parties in a bilateral contract have a relationship of simultaneous performance, in principle, as a matter of principle, and where a contract combining two or more typical contracts under the Civil Act is concluded, if one of the parties has a relationship of simultaneous performance with several obligations of the other party, it is reasonable to view that the multiple obligations of the other party and several obligations of the other party are in a relationship of simultaneous performance (see Supreme Court Decision 2007Da40260, Feb. 28, 2008, etc.).

B. The court below acknowledged, based on its adopted evidence, that ① Nonparty 1 sold the instant land and buildings to the Defendant and asked the Plaintiff to allow the Defendant to engage in a leasing business. The Plaintiff consented thereto. ② The Plaintiff and the Defendant around that time: (a) assumed the secured obligation of the Defendant to return the lease deposit of the instant building, and KRW 47,00,000,000, and paid the Plaintiff KRW 150,000,000, and the Plaintiff transferred the instant land and buildings to the Defendant; and (b) concluded an agreement that the Plaintiff shall transfer the instant land and buildings to the Defendant (hereinafter referred to as the “instant agreement”); and (c) concluded the Plaintiff’s obligation to pay KRW 150,000,000,000 with the obligation to pay KRW 15,50,000,000,000 with the obligation to pay the lease deposit of the instant building.

C. Examining the above legal principles in light of the records, the court below's fact-finding and judgment are just, and there is no error in violation of the rules of evidence, incomplete hearing, omission of judgment, etc. with the party to the agreement in this case as otherwise alleged in the ground of appeal

3. Regarding ground of appeal No. 3

A. A contract for rescission or rescission of a contract is a new contract, regardless of whether the contract has a right of rescission, which provides that both parties to the contract shall terminate the validity of the existing contract by agreement and return to the same state as that of the contract had not been previously concluded. In order to cancel the contract, there is a mutual agreement between the parties to the contract and the offer and acceptance of the contract as the formation of the contract is required (agreement). In order to establish such an agreement, the contents of the agreement expressed by both parties must objectively coincide (see Supreme Court Decision 192.6.6.).

23. See Supreme Court Decision 92Da4130, 4147, etc.)

In addition, the rescission of an agreement may be made not only explicitly but also by implied agreement between the parties. However, to recognize an implied rescission of agreement is insufficient to deem that both parties have failed to perform their remaining obligations over a long-term period of time upon the conclusion of a contract and the performance of a part thereof, leaving the contract neglected. In such a case, whether both parties either have no intent to realize the contract or have an intent to waive the contract ought to be determined by comprehensively taking into account the various circumstances after the conclusion of the contract (see Supreme Court Decision 196Da1538, Jun. 6, 1996).

25. See Supreme Court Decision 95Da12682, 12699, etc.)

On the other hand, in the case of the cancellation of contract due to the so-called "in the case of the intention of not performing in advance in the case of the cancellation of contract due to the default, the requirements for the cancellation of contract are mitigated in comparison with the cancellation of contract at the time of the delay of performance (see Supreme Court Decision 92Da9463 delivered on September 14, 1992) because the other party's peremptory notice and the other party's refusal of performance do not require the other party's own obligation to be provided (see Supreme Court Decision 92Da9463 delivered on September 14, 1992).

B. (1) According to the reasoning of the judgment of the court below, the court below acknowledged the facts of the judgment, and determined that the agreement between the plaintiff and the defendant in this case attempted to transfer ownership of the land in this case with the defendant refusing to pay KRW 150 million, and that the plaintiff had already cancelled the agreement on September 2006 or around March 2007, provided that the plaintiff had made provisional registration against the non-party 2 to maintain the ownership of the land in this case, and that the plaintiff did not wish to perform his obligations between the plaintiff and the non-party 2 by applying for provisional attachment against the plaintiff or by the defendant. (2) However, it is difficult to accept the judgment of the court below for the following reasons.

According to the records, on July 14, 2006, the defendant paid 40,000 won of the plaintiff's loans and cancelled all the collateral security and superficies established on the land of this case. On July 18, 2006, the plaintiff changed the owner of the building of this case to the defendant. The defendant completed the registration of preservation of ownership of the building of this case on September 4, 2006. On September 7, 2006, the plaintiff did not know that the provisional registration of this case was made on September 6, 2006 with respect to the land of this case under the name of non-party 2, who was the first generation of the plaintiff, and the provisional registration of this case was not made on September 6, 2006 ("the provisional registration of this case"), and the defendant did not know that the above provisional registration of this case was made for the purpose of cancelling the above agreement, and there was no dispute between the plaintiff and the defendant about the above provisional registration of this case from 00 years to 2007.

Examining these facts in light of the legal principles as seen earlier, the Plaintiff cannot be deemed to have reached an agreement between the Plaintiff and the Defendant to rescind the instant agreement on September 2006 or around March 2007, upon which the Defendant filed an application for provisional seizure of real estate, or to have reached the extent that the Plaintiff did not intend to realize the instant agreement, or that the Defendant did not intend to waive the said agreement. In addition, considering the various circumstances before and after the filing of the application for provisional seizure, it is difficult to readily conclude that the Defendant’s refusal of performance clearly and ultimately expressed the Defendant’s intention of refusal of performance solely based on the fact that the Defendant filed the said application for provisional seizure. Therefore, it cannot be deemed that the instant agreement was rescinded or that the Defendant was rescinded as the Defendant’s refusal of performance.

Nevertheless, the lower court determined that the instant agreement was rescinded on September 2006 or around March 2007, thereby adversely affecting the conclusion of the judgment by misapprehending the legal doctrine of rescission due to the rescission of a contract or the rejection of performance. The Defendant’s assertion pointing this out is with merit.

4. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon

Justices Kim Gi-hwan

Justices Min Il-young

Justices Lee In-bok