Right to cancel a contract for a delay in performance of a bilateral contract

In the bilateral contract, unless there are circumstances of the special group, the obligation of each party to the bilateral contract is in simultaneous performance relationship, so either party intends to cancel the contract on the grounds of delay of performance of the other party, first of all, by performing or providing repayment, the other party's right of defense of simultaneous performance becomes extinguished, and then the other party's obligation is delayed.

Articles 536 and 544 of the Civil Act

Supreme Court Decision 77Da147, 148 delivered on April 12, 197

Coordination List

Kim Tae-tae

E. H. M. M.S.

Busan District Court Msan Branch Court (75 Gohap62,340)

The appeal is dismissed.

The costs of appeal shall be borne by an independent party intervenor.

The plaintiff shall execute the registration procedure for transfer of ownership due to sale on December 14, 1973 with respect to the land in the attached list (1) through (6) to the plaintiff.

The judgment that the costs of lawsuit shall be borne by the defendant,

The plaintiff and the defendant confirm that the real estate sales contract made on December 14, 1973 with respect to the real estate mentioned in the attached Table 1 (2) (3) (6) against the independent party intervenor is invalid, and confirm that the above real estate is owned by the independent party intervenor.

The costs of lawsuit are assessed against the plaintiff and the defendant.

A judgment of the same content is sought by an independent party intervenor stated in the original judgment cancellation and the purport of the claim.

The plaintiff's main claim against the defendant and the independent party intervenor (hereinafter referred to as the "invenant")'s claims against the plaintiff and the defendant are examined together.

As evidence Nos. 1 through 8, Gap evidence Nos. 9-1, 10-1, 2, 11-2, Gap evidence Nos. 12-1, 13, and 14 of the judgment below and the testimony of the landscape building at the court below, the plaintiff is not entitled to purchase and sale registration of the above real estate at 10-1, 2, 10-1, 2, 10-1, 14 of the judgment below, and 14 of the judgment below for sale and purchase of the above real estate at 10-7, 1973.14, the plaintiff is not entitled to purchase and sale of the above real estate at 10-7, 200-7, 100-7, 200-7, 200-7, 3,000-7,000-1,000-7,000-7,000-7,00-7,000.

Therefore, the defendant is obligated to implement the registration procedure for transfer of ownership on the land subject to the separate entry in the separate sheet to the plaintiff on December 14, 1973.

However, the intervenor's assertion that the above provisional disposition on the land was void due to the cancellation of the contract between the plaintiff and the defendant's 1973.12.14, and that the defendant's transfer registration on the above real estate was completed on December 21, 1974 as to the land stated in attached Table 1 (2) (6) (hereinafter "real estate subject to participation") by the plaintiff 2 and the defendant's transfer registration on December 23, 197, and that the plaintiff's transfer registration was completed on October 22, 1975 for the purpose of preserving the right to claim ownership transfer registration on the 194.1 and the above provisional disposition on the 197.1 and the above provisional disposition on the 194. The defendant's allegation that the above provisional disposition on the above real estate will not be valid until the 20.1 and the defendant's transfer registration on the 194. The remaining real estate will not be valid until the 19.2nd of the original judgment's agreement and the 19.2nd of May 27.

Next, the intervenor argued that the plaintiff had no ability to pay the remaining amount by itself and the defendant would cancel the above sales contract with the plaintiff without performing his own obligation, but it is not sufficient to recognize the contents of Byung evidence Nos. 1 and Byung evidence Nos. 6 and the result of the defendant principal examination at the court below, and there is no other evidence to acknowledge it. Thus, the intervenor's above assertion is without reason.

Finally, the intervenor's contract between the plaintiff and the defendant on December 14, 1973 shall be deemed to have been terminated as a matter of course by agreement only as to the land of this case on January 18, 1975. Therefore, the above provisional disposition issued on December 14, 1973 pursuant to the above provisional disposition cannot be useful for the subsequent contract on January 18, 1975. Further, the above provisional contract cannot be asserted to be valid for the plaintiff's new contract on real estate subject to participation lawsuit since the intervenor's ownership over this case's real estate can not be asserted to be the intervenor's ownership. However, the agreement between the plaintiff and the defendant on January 18, 1975 between the plaintiff and the defendant on December 14, 1975 is an intermediate payment paid to the defendant at the time of conclusion of the contract on December 14, 1973, and it shall be interpreted to be valid for the plaintiff's new contract on the sale of this case's land, and it shall be interpreted as valid for the above new contract on January 14, 197.

Therefore, the plaintiff's claim of this case against the defendant for the execution of the procedure for the transfer registration of ownership due to sale on December 14, 1973 as to the transferred land in the separate list is justified, and the above sale contract between the plaintiff and the defendant is null and void. In addition, the plaintiff's claim against the plaintiff and the defendant who seeks the confirmation of whether the above real estate is owned by the intervenor shall be dismissed as it is without merit. Thus, the judgment below is just in conclusion, and the plaintiff's appeal is unfair, and it is dismissed in accordance with Article 384 of the Civil Procedure Act, and it is decided as per Disposition by the application of Articles 95, 89, and 94 of the Civil Procedure Act with respect to the burden of the appeal cost.

Judges Lee Jong-dae (Presiding Judge)