[1] The criteria for determining whether a party to a bilateral contract has expressed his/her intention not to perform his/her obligation in advance, and the requirements for cancelling the contract pursuant thereto

[2] In a real estate sales contract, the requirements for the cancellation of a sales contract by which the seller is liable for delay to the buyer, and the extent of the seller's provision of performance necessary for the cancellation of the sales contract where the buyer has failed to receive documents for registration of transfer of ownership, such as failure to pay the balance when the seller takes a non

[1] Article 544 of the Civil Code / [2] Articles 460 and 544 of the Civil Code

[1] Supreme Court Decision 97Da30257 delivered on November 28, 1997 (Gong1998Sang, 74) / [2] Supreme Court Decision 90Da8343 delivered on July 12, 1991 (Gong1991, 2134 delivered on July 14, 1992) 92Da5713 delivered on July 14, 1992 (Gong192, 2396) Supreme Court Decision 92Da36373 delivered on November 10, 1992 (Gong193Sang, 91)

[Judgment of the court below]

Defendant (Attorney Cho Young-young, Counsel for the defendant-appellant)

Seoul High Court Decision 2006Na8087 delivered on December 12, 2006

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

The grounds of appeal are examined.

1. As to the grounds of appeal related to the termination of a contract on the grounds of rejection of performance

In general, when one of the parties expressed an intention not to perform his/her own obligation in advance in a bilateral contract, the other party may rescind the contract without demanding performance or providing for the performance of his/her own obligation. Whether there was an intention not to refuse performance should be determined by comprehensively examining the parties’ behavior and specific circumstances before and after the contract (see, e.g., Supreme Court Decisions 90Da8374, Mar. 27, 1991; 97Da30257, Nov. 28, 1997).

According to the reasoning of the judgment below, after compiling the adopted evidence and recognizing facts as stated in its reasoning, the court below determined that the defendant's intention not to implement the contract of this case against the plaintiff in advance cannot be deemed as a conclusive and final expression of intention not to perform the contract of this case by each notification of May 8, 2005 and May 14, 2005. In light of the above legal principles and records, the above fact-finding and decision of the court below are just, and there are no errors in the misapprehension of the rules of evidence, the incomplete hearing, the omission of judgment, and the rejection of performance, as otherwise alleged in the grounds of appeal.

2. As to the grounds of appeal related to "compensation for damages caused by impossibility of performance and impossibility of performance"

In a real estate sales contract which is a bilateral contract, a seller of real estate has failed to pay the remainder on the due date to cancel the sales contract. In principle, the seller is required to prepare all documents necessary for the application for the registration of ownership transfer to the extent that the buyer is able to accept the application and to provide them by notifying the other party of the receipt of the payment. In addition, the buyer has failed to comply with the request after notifying the other party of the performance of the other party's obligation to pay the remainder within a reasonable period of time. In a case where the buyer has failed to prepare the documents for the registration of ownership transfer, such as the failure to pay the remainder, etc. while performing the contract, the seller is also required to obtain a certificate of personal seal for real estate sale and to prepare documents necessary for the registration of ownership transfer by delegation to a certified judicial scrivener, etc. at the same time as the receipt of the balance and the receipt of registration rights (see, e.g., Supreme Court Decisions 92Da5713, Jul. 14, 1992; 92Da36373, Nov. 10, 1992).

According to the evidence and records duly adopted by the court below, the defendant sent contents-certified mail to the plaintiff on August 23, 2005, which was after the expiration of the remaining payment date under the contract of this case ( July 1, 2005) and notified the plaintiff to receive documents necessary for the application for ownership transfer registration and to pay the balance. In fact, the defendant, on August 29, 2005, provided the plaintiff with a certificate of personal seal for real estate sale, a certificate of Korean national residing abroad for real estate sale, a certified copy of the register of overseas Koreans for real estate sale, a certificate of blank delegation, a certificate of right to registration of this case's real estate, and a certificate of seal impression as the above attorney's office, and the plaintiff's attorney did not appear at the above place, and the plaintiff's legal representative rejected the plaintiff's transfer transfer registration and payment of remainder on the ground that he did not have an obligation to return the plaintiff's contract of this case to the plaintiff's legal representative on September 6, 2005.

On the premise that the Defendant still is liable to implement the registration procedure for ownership transfer on the ground of the instant sales contract to the Plaintiff, the lower court erred in its conclusion that the above obligation was omitted on July 26, 2006, but it is justifiable to dismiss all the Plaintiff’s primary claim and the conjunctive claim. Therefore, there is no error of law affecting the conclusion of the judgment.

3. 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 Kim Nung-hwan (Presiding Justice)