If the mandatary fails to perform his/her obligations under the delegation contract properly, the requirements to cancel the delegation contract on the ground of default.

If the mandatary is not always able to rescind the delegation contract on the ground of the default on his/her obligation without a peremptory notice, and even if it is possible for the mandatary to perform his/her obligation under the delegation contract, the mandator shall notify the mandatary of the performance within a reasonable period of time, and the mandatary may rescind the contract only if the mandatary fails to perform it within the said period of time.

Articles 544, 546, and 689 of the Civil Act

Supreme Court Decision 70Da1342, 1343 Decided February 23, 1971 (No. 19-1, 91), Supreme Court Decision 85Meu2239 Decided June 23, 1987 (Gong1987, 1202), Supreme Court Decision 85Meu2263 Decided September 22, 1987 (Gong1993, 1453, 1453), Supreme Court Decision 90Da18968 Decided April 9, 191 (Gong191, 1353)

Plaintiff (Attorney Full-time Training, Counsel for plaintiff-appellant)

Defendant (Attorney Jeong-soo, Counsel for the defendant-appellant)

Busan District Court Decision 95Na990 delivered on May 10, 1996

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

The grounds of appeal are examined.

According to the reasoning of the judgment below, on September 19, 192, the court below delegated the contract of lease of 19,482 square meters (18,743/19,537) of forest land in Ulsan-gu, Nam-gu, Seoul-gu, where the non-party is holding a share in the non-party to operate a golf driving range, to the defendant on September 19, 192, and transferred a deposit of 20,000,000 won to the defendant on the same day. On the 23th of the same month, the court below determined that the defendant did not legally delegate the above contract to the non-party to the non-party on September 19, 198 by signing a lease contract with the non-party on the deposit of 20,000,000, monthly rent of 5,000, and the lease period of 2 years, and that the defendant paid the non-party the above deposit of the above lease contract to the non-party, and that the defendant did not legally delegate the above contract to the non-party.

However, if the mandatory fails to properly perform the obligation under the delegation contract and the mandatory is not always able to rescind the delegation contract on the ground of the nonperformance without the peremptory notice, and even if it is possible for the mandatory to perform the obligation under the delegation contract, the mandator may rescind the contract only when the mandatory fails to perform the obligation within the given period.

Therefore, the court below should have deliberated on whether it is possible or impossible to change the name of the lessee under the already-established lease contract to the plaintiff, even if the defendant entered into a lease contract with the non-party with the name of the lessee as the defendant. If possible, it should have deliberated on whether the plaintiff notified the defendant to enter into the lease contract in accordance with the purport of the delegation contract.

Nevertheless, without clarifying the above points, the court below determined only the fact that the defendant entered into a lease contract with the name of the tenant as the defendant, and immediately determined that the rescission of the delegation contract by the plaintiff is lawful, it is erroneous in the misapprehension of the legal principles as to the rescission of the contract and the peremptory notice, and it is obvious that such illegality has affected the conclusion of the judgment. There is a reason to point this out.

Therefore, without further proceeding to decide on the remaining grounds of appeal by the Defendant, 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

Justices Jeong Jong-ho (Presiding Justice)