[1] The purpose of the defense right system for simultaneous performance, and the case where each obligation to be borne by the parties is not in an inherent quid pro quo relationship with the bilateral contract, but can be admitted as a defense for simultaneous performance

[2] The case holding that since the obligation to pay indemnity to the guarantor of the principal debtor can be deemed as a contribution obligation under a joint investment agreement substantially with the obligation to pay indemnity to the guarantor of the principal debtor, the obligation to pay indemnity to the guarantor of the principal debtor and the obligation to transfer ownership to the principal debtor of the guarantor is a compensatory relation and a simultaneous performance relationship

[1] Article 536 of the Civil Code / [2] Article 536 of the Civil Code

[1] Supreme Court Decision 91Da30927 delivered on August 18, 1992 (Gong1992, 2737), Supreme Court Decision 92Da23193 delivered on February 12, 1993 (Gong1993Sang, 962), Supreme Court Decision 94Da55118 delivered on June 30, 1995 (Gong1995Ha, 2561), Supreme Court Decision 98Da53899 delivered on April 23, 199 (Gong199Sang, 107) (Gong200Da43819 delivered on March 27, 2001, 96)

Maap heading

Kim Jong-sung (Attorney Lee Jong-chul, Counsel for the defendant-appellant)

Seoul High Court Decision 2003Na51271, 83315 decided March 25, 2004

The part of the lower judgment against the Plaintiff (Counterclaim Defendant) regarding the counterclaim is reversed, and that part of the case is remanded to the Seoul High Court.

1. Fact-finding and judgment of the court below

A. The court below acknowledged the following facts based on the evidence adopted.

(1) On January 23, 1999, the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) concluded a sales contract to purchase the instant real estate at KRW 380,1150,000,000 with the Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”) upon investment recommendation of the Defendant (Counterclaim Plaintiff; hereinafter referred to as “Defendant”) and paid the down payment amount of KRW 64,000,000 on the same day. The first Plaintiff was sold for the purpose of resale the instant real estate before the date of payment of intermediate payment, but it was difficult to resell the instant real estate price due to a fall in real estate price, and received real estate owned by the Plaintiff and the head as collateral from a financial institution, and paid KRW 151,150,000,000 including the said down payment, including the first intermediate payment and KRW 5,715,000,000.

(2) When the actual market price was formed less than the sale price expected to obtain marginal profits, the Plaintiff applied for the Defendant responsible for mediating the sale price of the instant real estate. On September 1, 1999, the Defendant concluded a lease agreement between the Plaintiff and the Plaintiff to rent an amount equivalent to the difference between the remaining price and the lease deposit out of the sale price of the instant real estate (the Defendant’s interest shall also be borne). The Plaintiff agreed to determine the share ratio on the premise that the amount of the investment was invested in KRW 151,150,000 and the Defendant’s investment in KRW 90,000,000. On the same day, the Plaintiff and the Defendant jointly agreed to lease the instant real estate in a state of non-registration to be leased KRW 140,000,000,000, which was paid out of the lease deposit.

(3) The plaintiff demanded that the real estate of this case be offered as security in order to obtain a loan from a financial institution in accordance with the above agreement. After completing the registration of ownership transfer in its name, the plaintiff made a registration of creation of a neighboring mortgage with the maximum debt amount of KRW 117 million on October 28, 199, the debtor, the defendant, and the National Agricultural Cooperative Federation of Korea (hereinafter referred to as the "CF"), and as security, the defendant entered into a monetary loan agreement with the National Agricultural Cooperative Federation of November 5, 199 to obtain a loan with the maturity of KRW 90 million on November 5, 2002, interest rate of KRW 9.75% per annum, and interest rate of KRW 17% per annum. In this case, the plaintiff jointly and severally guaranteed the defendant's debt.

(4) Of the amount of KRW 90 million loaned by the Defendant, KRW 86,974,840,000, was transferred from the deposit account under the name of the Defendant to the deposit account in the name of Hyundai Construction, which is the contractor of the instant real estate, the sales price of the instant real estate was fully paid.

(5) Meanwhile, as the Defendant paid only interest on the above loan until June 200, and did not pay the interest thereafter, the Plaintiff paid to the NAF on May 2, 2001, the sum of the principal of the above loan and the interest from February 23, 2001 after the above overdue date to February 23, 2001.

B. Next, according to the above facts, the court below held that the defendant is obligated to pay the plaintiff the legal interest and delay damages under the Civil Act or the Special Act on the Promotion, etc. of Legal Proceedings from May 2, 2001, which is the date of subrogation for the payment of the amount of KRW 95,128,610 on behalf of the plaintiff, and the defendant is obligated to pay for the counterclaim claim. According to the above facts, according to the above facts, it is not easy for the defendant to resell the real estate after the purchase of the real estate for the purpose of obtaining short-term profit margin by the defendant's solicitation, and therefore it is difficult for the defendant to make a contribution to the above loan. The amount of the investment at this time is the amount of KRW 151,150,150,241,150,150:90,241,150,150,241,150 on behalf of the plaintiff. Thus, the plaintiff and the defendant's contribution to the real estate of this case are equivalent to the amount of KRW 190,4,190.

2. Judgment on ground of appeal No. 1

The right to defense of simultaneous performance is a system that recognizes a close relationship in the performance of the obligations of each party based on the concept of fairness and the principle of good faith and allows the other party to refuse the other party to perform his/her obligations if the other party's obligations are requested to discharge his/her obligations without performing the obligations or not providing the performance. In light of the purport of this system, even if each obligation to be borne by the party is not in a bilateral contract with a unique quid pro quo relationship, the right to defense of simultaneous performance may be acknowledged in a case where there are circumstances to recognize a close relationship in the performance in accordance with the terms of the agreement on the obligation to be borne by each party in a specific contractual relationship, even if it is not in a quid pro quo relationship (see Supreme Court Decision 91Da30927 delivered on August 18, 1992).

According to the facts acknowledged by the court below, the defendant's obligation is formally a joint and several surety that the defendant is a joint and several surety that the defendant is a joint and several surety that performs the joint and several liability, but the above indemnity is merely a modification of the investment amount that the defendant has to make pursuant to the investment agreement on September 1, 1999 and is merely a modification of the investment amount that the defendant has to make pursuant to the above investment agreement on September 1, 199. The plaintiff's obligation recognized by the court below is a joint and several surety that the defendant bears to the plaintiff who is the other party. The plaintiff's obligation is a joint investor pursuant to the investment agreement on September 1, 1999, and thus it cannot be deemed that each of the above obligations is meaningful. On the other hand, as long as the registration of transfer of the real estate of this case subject to investment was made in the name of the plaintiff, and the defendant has not made an actual contribution by the closing date of argument, the above obligation should be acknowledged as a simultaneous performance relation.

Nevertheless, the court below did not decide on the plaintiff's defense that the plaintiff is liable to implement the procedure for the registration of ownership transfer only with the performance and redemption of the defendant's obligation to pay indemnity, and ordered the plaintiff to perform the procedure for the registration of ownership transfer for reasons as stated in its reasoning. The court below erred by omitting judgment or by misapprehending the legal principles as to the right to defense of simultaneous performance. Therefore, the ground of appeal pointing

3. Judgment on the second ground for appeal

기록에 비추어 살펴보면, 원심이 원고의 주장, 즉 원고가 이 사건 부동산의 취득과정에서 등기비용, 취득세, 베란다 문틀(샷시) 공사대금 등을 지출하였으므로 이러한 비용 등도 원고의 투자금액에 포함하여 원고와 피고 사이의 지분을 산정하여야 한다는 원고의 주장에 대하여, 위와 같은 비용 등은 원ㆍ피고 사이의 동업관계가 종료되어 그 이익과 손실을 정산할 때 고려되어야 할 것이라는 이유로 배척한 것은 수긍이 가고, 거기에 상고이유의 주장과 같은 위법이 없다.

4. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff regarding the counterclaim shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Cho Cho-Un (Presiding Justice)