The case holding that if an apartment constructor fails to complete the inspection of completion of an apartment house with the lapse of five years from the date of the contract for sale in lots and the date of occupancy after he occupied the down payment and part part payment from the buyer, the apartment constructor cannot cancel the above contract for the reason that the part payment is not paid under the principle of fairness

Where an apartment constructor received only down payment and part part payment from a buyer and moved into a buyer, even if the buyer’s obligation to pay part payment constitutes a pre-payment obligation, if it is a circumstance that the apartment constructor is unable to complete the inspection of completion of the above apartment from the date of entering into the sales contract with the buyer to the expiration of five years from the date of entering into the sales contract, the buyer may refuse to pay part of the pre-sale payment, and therefore, the apartment constructor cannot cancel the above sales contract on the grounds of the non-payment of part payment by the buyer.

Articles 2(1) and 536(2) of the Civil Act

Supreme Court Decision 73Da292 delivered on October 23, 1973 (Gong1973,7552) 73Da1632 delivered on June 11, 1974 (Gong1974,7981)

Samjin Development Co., Ltd., Counsel for the defendant-appellant

Defendant

Incheon District Court Decision 91Na3390 delivered on December 13, 1991

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. On the first ground for appeal

According to the reasoning of the judgment of the court below, the court below recognized the fact that the defendant moved into the apartment owned by the plaintiff with the payment of the down payment and only part part of part payment, and held that the plaintiff's claim for the cancellation of the sale contract on the ground of the defendant's remaining part payment is reasonable in light of the principle of equity in the case where five years have passed since the plaintiff completed the completion inspection on the apartment of this case between the plaintiff and the defendant, and the defendant's obligation to provide documents necessary for the registration of the transfer of ownership of the apartment of this case and the defendant's obligation to pay the remainder of the part payment of this case to the defendant simultaneously, since the plaintiff has not completed the completion inspection, the

According to the facts and records established by the court below, even if the defendant's obligation to pay part payments constitutes a prior performance obligation, if the plaintiff is not able to complete the inspection of completion of the above apartment from the date on which five years passed since the plaintiff moved into the defendant in this case, the defendant may refuse to pay part payments (see Article 2 (1) of the Civil Act; Article 536 (2) of the Civil Act). Thus, the plaintiff cannot rescind the above sales contract on the ground that the part payment is not payable by the defendant. Thus, in the judgment of the court below, it is just in the conclusion that the plaintiff's obligation to pay part payments and the plaintiff's obligation to provide documents for transfer of ownership are in a simultaneous performance relationship, but it is not justified in the conclusion of rejecting the plaintiff's claim for cancellation of contract on the ground of the principle of equity.

2. On the second ground for appeal

According to the reasoning of the judgment below, the plaintiff's assertion that the plaintiff failed to complete the inspection of completion of the apartment of this case due to the obstruction of the defendant's act is without any evidence to acknowledge it. In light of the records, the above recognition by the court below is just and there is no error of incomplete deliberation or violation of the rules

Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-ho (Presiding Justice)