[1] The method and degree of offering performance for the seller of real estate to delay the buyer's performance

[2] The case reversing the judgment of the court below on the ground that there was an error in the incomplete hearing as to whether the seller's obligation to transfer ownership continues to be provided

[1] The degree of offer to be made by the parties can be reasonably determined without violating the good faith principle, depending on the time and specific circumstances of the party's strict request for the performance of the party's obligation in a bilateral contract. In a real estate sales contract, the seller's obligation to register ownership transfer and the obligation to pay the buyer's balance of purchase and sale is not a delay of performance when both parties do not provide performance. For making the buyer a delay of performance as a result of the seller's delay of performance, documents necessary for the registration of transfer of ownership should be offered, or the seller must prepare the documents, etc. at the place of performance and notify the buyer of the intention thereof. Thus, for making the buyer a delay of performance as a result of the seller's delay of performance, the seller must be notified of the fact that the documents, etc. can be received at any time through the continuous keeping of the documents, etc. at the office set at the place of performance, unless there are special circumstances. If the seller gives notice of the fact that the documents can be received at any time and demand for a delay of performance within a reasonable period required under the good faith.

[2] The case reversing the judgment of the court below on the ground that there was an error in the incomplete hearing as to whether the seller's obligation to transfer ownership continues to be provided

[1] Articles 460 and 544 of the Civil Act / [2] Article 460 of the Civil Act, Article 393 of the Civil Procedure Act

[1] Supreme Court Decision 93Da777 delivered on December 28, 1993 (Gong1994Sang, 509), Supreme Court Decision 95Da40397 delivered on December 22, 1995 (Gong1996Sang, 507), Supreme Court Decision 96Da17738 delivered on July 30, 1996 (Gong196Ha, 2658)

Plaintiff (Counterclaim Defendant) 1 and one other

Defendant-Counterclaim Plaintiff (Attorney Lee Young-young et al., Counsel for the defendant-Counterclaim plaintiff-appellant)

Defendant 2 and one other (Attorneys Kim Young-il et al., Counsel for the defendant-appellant)

Seoul High Court Decision 200Na10712, 10729, 10736 delivered on December 13, 2000

Of the counterclaim claim by the lower judgment, the part on the claim for damages for delay pertaining to KRW 397,00,000 for the remaining purchase price is reversed, and that part of the case is remanded to the Seoul High Court. The appeal by the Plaintiff (Counterclaim Defendant) and the remainder of the Defendant (Counterclaim Plaintiff) 1 are all dismissed. The costs of appeal are assessed against the Plaintiff (Counterclaim Defendant).

1. As to the appeal by the Plaintiff (Counterclaim Defendant, hereinafter referred to as the “Plaintiff”)

With respect to Chapter 1

Of the instant real estate purchased from Defendant 1 (Counterclaim Plaintiff, hereinafter referred to as the “Defendant”), the lower court, based on its admitted evidence, found that the Plaintiffs suffered damages from the amount of money corresponding to the defect repair cost due to leakage of water, etc. in the instant building. In addition, the lower court, based on the following: (a) repair costs of KRW 15,987,00 were required to repair the instant building; and (b) the Plaintiffs were required to repair the amount of KRW 160,356,517 for the repair of the additional discovered defects; (c) on December 1, 1997, after the order of the instant building was issued, the Plaintiffs notified Defendant 1 of the defectiveness of the instant building with the content certification; and (d) on December 5, 1997, the Plaintiffs received KRW 15,000,000 from Defendant 1, and agreed on the compensation for damages due to the defect in the said content, and did not accept the Plaintiffs’ claim that the Plaintiffs were exempted from liability for the aforementioned defect repair costs.

As examined in comparison with the evidence in the record, the recognition and judgment of the court below is just, and there is no violation of law by failing to exhaust all necessary deliberations or by misapprehending the legal principles on illegal or defect liability, etc. which are found to have been erroneous by violating the rules of evidence. The precedents pointed out in the appellate brief are different cases, and it is not appropriate to

We cannot accept the allegation in the grounds of appeal on this point.

With respect to Chapter 2

The gist of the plaintiffs' assertion in the grounds of appeal is that since ○○○○○, the lessee of the building of this case, did not pay 1.4 million won for rent and management expenses in May 1998, Defendant 1, instead of the plaintiffs, claimed that the amount that can be claimed on the ground that the lease deposit was refunded to ○○○○○○○○○ in lieu of the plaintiffs, shall be the amount that remains after deducting 1.4 million won for rent and management expenses in arrears from 20 million won for the lease deposit of ○○○○○○○○○○○ in lieu of the plaintiffs. The court below rejected the plaintiffs' assertion on the grounds as stated in its reasoning, it erred by misapprehending the rules of evidence, or by misapprehending the legal principles on rent in arrears

However, in accordance with the reasoning of the judgment below and the record, the amount claimed against the plaintiffs on the ground that the defendant 1 paid the lease deposit to the ○○○○○○○ on behalf of the plaintiffs is already deducted from the rent and management expenses in May 1, 1998, which was overdue by ○○○○○○○○○, and the judgment below also acknowledged the right to indemnity against the defendant as to the remaining lease deposit after deducting the above rent and management expenses which were overdue by ○○○○○○○○○○○○○○○○○, and thus, it cannot accept the plaintiffs'

As to the third proposal

The gist of the plaintiffs' assertion is that the judgment of the court below, at the sentencing date, declared the plaintiffs' request for cancellation of registration of provisional seizure and the judgment that accepted the request for provision of prior security, but the order of the original judgment delivered to the plaintiffs is dismissed. Thus, it is unlawful that the main text of the judgment stated in the original judgment is different from that of the judgment rendered at the sentencing

However, based on the judgment of the court below and the judgment of the court below and the records, the court below sentenced the judgment based on the original of the judgment. According to the original of the judgment which the court below rendered, it is clear that the court below dismissed the plaintiffs' request for cancellation of provisional seizure registration and the request for prior provision of security, and no other evidence exists to deem that the court below sentenced the judgment different from the original of the judgment at the date of judgment. Thus, it cannot be deemed that the judgment of the court

The argument in the grounds of appeal is not accepted.

2. As to Defendant 1’s appeal

A. As to the claim for damages for delay of sale

The plaintiffs purchased the real estate of this case owned by defendant 1 on November 13, 1997 and paid 1.9 billion won on the date of the contract, and the intermediate payment of 720 million won on the 17th day of the month, and the remainder of 1 billion won on the 6.3 billion won out of the remainder of 1 billion won shall be replaced by the lease deposit, and the remainder of 397 million won shall be replaced by the lease deposit and the remainder of 397 million won shall be paid on May 4, 1998. In this case, defendant 1 claimed the remainder of 397,000,000 won on the grounds that the plaintiffs delayed performing the obligation to pay the remainder as one of the counterclaims, with the rate of 5 percent per annum from the following day after the date of the counter-claim from May 4, 1998 to the date of the service of a duplicate, and with the rate of 25 percent per annum.

In full view of his adopted evidence, the court below acknowledged the facts that Defendant 1 notified the plaintiffs on April 21, 1998 that he will pay any balance on the outstanding payment date and notified them that he will be in preparation for documents necessary for the registration of transfer of ownership, and that on April 29 of that year, he was entrusted with a certified judicial scrivener office with a certificate of personal seal impression for sale of real estate, a certified copy of resident registration, and a power of attorney issued on April 29 of that year, but the plaintiffs did not pay any balance on May 4 of that year. The registration certificate of the right to the real estate of this case was already issued to the plaintiffs on November 17, 1997, which was the date of the payment of the intermediate payment, in order to complete provisional

Furthermore, the court below rejected Defendant 1's claim for delay damages on the ground that, while the purchaser did not perform his obligation to pay any balance on the date of the remainder payment, Defendant 1, the seller, prepared documents necessary for the registration of transfer of ownership to the real estate of this case and provided performance to the plaintiffs, thereby resulting in delay of performance. However, even if one of the parties in a bilateral contract, even if one of the parties had offered performance first once, and did not continue to provide performance, if the other party's right to defense of simultaneous performance was not extinguished. Thus, the other party's right to defense of performance cannot be extinguished because one of the parties temporarily provided performance to the other party for his obligation, but the other party's obligation cannot be seen as having been delayed due to the fact that the other party's obligation was delayed after the provision of performance was suspended, since the other party's obligation was no longer found to have been delayed due to delay of performance. Thus, the court below rejected Defendant 1's claim for delay damages on the ground that there was no evidence to find that it had been provided without interruption of the ownership transfer obligation after the remainder payment date.

If a party to a bilateral contract requires strict performance of the party's obligation in relation to the bilateral contract, the degree of offer to be made by the party can be reasonably determined as not contrary to the principle of trust and good faith depending on its time and specific circumstances (see Supreme Court Decision 95Da40397, Dec. 22, 1995). In a real estate sales contract, the seller's obligation to perform the procedure for transfer of ownership and the obligation to pay the buyer's remainder of purchase and sale are not a delay of performance when both parties do not provide the buyer's obligation. In order to make the buyer a delay of performance as a result of the delay of performance, the seller shall actually provide documents necessary for registration of transfer of ownership or notify the buyer of its intention by preparing the documents at the place of performance and demand the buyer to receive them (see, e.g., Supreme Court Decisions 93Da777, Dec. 28, 1993; 97Da40397, Jul. 30, 1996).

In light of such legal principles, the lower court’s rejection of Defendant 1’s claim for damages for delay on the ground that there is no evidence supporting that Defendant 1’s performance of the obligation to transfer ownership was offered without interruption even after the remainder payment date.

The record reveals that Defendant 1 entrusted the non-party to the non-party to the performance of the procedure for the transfer registration of ownership to the real estate of this case on the remaining payment date, and entrusted the non-party with a certificate of personal seal impression, resident registration, proxy, etc. to the certified judicial scrivener, who is necessary to complete the transfer registration of ownership to the real estate of this case. Even after the issuance of a new certificate of personal seal impression to the plaintiffs. In particular, after the judgment of the court of first instance was rendered, the court below issued a new certificate of personal seal impression to the certified judicial scrivener again after the letter of power was prepared and kept in the office of this case, and submitted the above evidence Nos. 14, 15-2, 3 certificate of personal seal impression, 4, 5 (Delegation), 6 (Certificate), and 7 (No. 14) to the non-party to the contract that the non-party, who is a certified judicial scrivener of this case, continued to receive the ownership transfer registration of this case at the expiration of 10-year period after the examination of this case.

Nevertheless, the court below rejected Defendant 1’s claim for damages for delay against the balance of purchase and sale, on the ground that there is no evidence to acknowledge that Defendant 1’s performance of the obligation to transfer ownership was continuously offered even after the outstanding payment date, and thereby, erred by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. Thus, Defendant 1’s ground of appeal assigning this error is justified.

B. Claim for unjust enrichment by subrogation

Defendant 1 filed an appeal as to the part against the above Defendant out of the claim for unjust enrichment by subrogation among the judgment below regarding counterclaim, but there is no indication in the petition of appeal or the appellate brief on that part.

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for damages for delay of KRW 397,00,000 of the purchase and sale balance among the counterclaim claim is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. All appeals by the plaintiffs and defendant 1 are dismissed. The costs of appeal are assessed against the plaintiffs. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.

Justices Shin Shin-chul (Presiding Justice)