[1] The relationship between the time of incorporation and the date of incorporation of a company in the course of incorporation and the relationship between the rights and duties acquired by the promoters before the company is equipped with its substance

[2] The case holding that Article 539 of the Civil Act shall apply mutatis mutandis to the case where a contract that a third party directly acquires the right to claim the registration of transfer of ownership, that is, where the abortion person agrees to transfer the ownership of real estate to a third party between the summary and the summary, the third party acquires the right to claim the registration of transfer of ownership by expressing his/her intention of profit to the deceased

[3] The criteria for determining whether a corporation not yet constituted at the time of a contract for a third party can be a third party and whether it constitutes a contract for a third party

[4] In a case where the real estate was transferred before the transfer, whether the final transferee can directly demand the first transferor to implement the procedure for the transfer registration of ownership

[5] Whether the exercise of the right to claim the purchase price held by the first seller against the intermediary who is the buyer, or whether the exercise of the right to claim the transfer of ownership by the first seller who is the buyer is restricted (negative)

[6] The case holding that the principal implicitly consented to the appointment of a sub-agent of an agent

[7] Whether the ratification of an act of unauthorized representation may be made by an implied declaration of intention (affirmative), and the other party to the declaration of intention of ratification

[8] Requirements for recognizing an implied rescission of a contract

[9] In case where the peremptory notice of performance exceeds the amount of obligation to be performed by the obligee, the peremptory notice and the legal effect of the cancellation of the contract based on it

[10] Whether the beneficiary has the right to claim restitution based on the termination or cancellation of the contract for a third party (negative)

[11] The legal relationship in case where all co-owners sell their shares to the same buyer according to a single sales contract in the form of a single sales contract

[1] The term "company during the process of incorporation" means a company in which promoters, in the process of incorporation, acquire rights and duties acquired by acts necessary for the incorporation of the company, to explain the relationship to which the company is incorporated at the same time as the establishment of the company, and the articles of incorporation is established only when the promoters have acquired at least one share of shares, and the promoters have acquired at least one share of shares. Such a company in the process of incorporation shall be attributed to the promoters or promoters' associations in accordance with specific circumstances, and the rights and duties acquired by the promoters prior to the incorporation shall be attributed to the company after the establishment of the company

[2] The case holding that Article 539 of the Civil Act shall apply mutatis mutandis to the case where a contract that a third party directly acquires the right to claim the registration of transfer of ownership, that is, where the abortion person agrees to transfer the ownership of real estate to a third party between the summary and the summary, the third party acquires the right to claim the registration of transfer of ownership of real estate by expressing his/her intention to make profits

[3] In case of a contract for a third party, even if a third party has not yet arrived at the time of the contract, if the formation of a juristic person was towed in the future, it shall be deemed a third party. Whether a contract is for a third party or not is a contract for a third party is an issue of interpreting intent to directly acquire the right of a third party under the contract. This may be determined by interpreting a reasonable intention of the party to the contract, taking into account all the circumstances such as the purpose of the contract, the nature of the act of the party to the contract, the understanding loss arising between the parties or between the third party due to the contract, transaction practices, and the social functions of the contract system for the third party.

[4] In the event that real estate was transferred before transfer, the final transferee cannot directly request the first transferor to register the ownership transfer in his name unless there is an agreement on the intermediate omission registration, and the final transferee is required to have an agreement between the first transferor and the last transferee in addition to the agreement between the first transferor and the last transferee in order to exercise the right to claim the ownership transfer registration directly on the ground of an agreement on the intermediate omission registration. Thus, even if the last transferee received the right to claim the ownership transfer registration from the intermediate transferee, if the transferor does not agree on the first transfer, the last transferee shall not claim the execution of the ownership transfer registration procedure on the ground of the transfer of ownership against the first transferor.

[5] The agreement on the intermediate omission registration is merely an agreement between the parties that the first seller should complete the registration of ownership transfer from the final buyer for the convenience of performance, on the premise that each sales contract is effective in cases where the real estate was sold entirely. Therefore, such agreement does not restrict the exercise of the right to claim the purchase price held by the first seller against the intermediate buyer who is the buyer under the sales contract he/she became a party, or the exercise of the right to claim the registration of ownership transfer against the first seller who is the buyer.

[6] The case holding that the principal implicitly consented to the appointment of a sub-agent of an agent

[7] Where a person disposes of another person's rights in his/her own name or as his/her own right and the disposition is recognized only after the date of the disposition, unless there is a special reason, the above disposition shall take effect on the person himself/herself as the case of ratification of unauthorized Representation, and the validity of unauthorized Representation is determined depending on the person's ratification. The ratification is a single act with knowledge of the act of unauthorized Representation and the effect of such act is to vest in the person himself/herself, and it does not require a certain method as to the method of declaration of intention, so it does not ask whether it is explicitly or implicitly, and the other party to the declaration of ratification is an unauthorized Agent or the other party.

[8] The termination of a contract is another contract with the purport of generating the same effect as that of the parties already concluded. In order to cancel an agreement formed by an agreement between the parties, the requirement is that the parties agree with the offer and acceptance of the rescission contract with the intent to terminate the validity of the existing contract, as in the case of the formation of the contract in order to cancel the agreement. In order to establish such an agreement, the contents of the intent expressed by both parties must coincide objectively with each other. The cancellation of the agreement may be impliedly made. However, in order to have the contract terminated implicitly, the intention not to realize the contract should be agreed upon due to the lack or renunciation of the parties' intent to realize the contract after the formation of the contract.

[9] Even in cases where the obligee’s demand for performance exceeds the amount of the obligation to be performed by the obligee, if the difference between the amount to be performed by the obligee and the amount to be performed by the obligee is relatively small or excessive, or the obligee knew about the amount to be performed and excessive, and thus the obligee claims the original payment, such demand shall be valid within the limit of the amount to be paid by the obligee. However, in cases where it is obvious that the obligee would not receive it if the obligee’s demand is remarkably excessive and the obligee would not provide the amount to be claimed, the demand is unlawful and the rescission of the contract based on such demand is invalid.

[10] In a contract for a third party, a beneficiary who has expressed his/her intention of profit may directly claim the performance of the contract to the deceased-disadvantaged person, and in cases where the summary offender cancels the contract, he/she may claim the compensation for the loss that he/she sustained, but the beneficiary is not a party to the contract for a third party, and there is no right to claim restitution based on the right

[11] Each co-owner may freely dispose of shares owned by him/her, so even in cases where all co-owners sell all shares owned by him/her to the same purchaser under a single sales contract in form, a separate sales contract was established for each co-ownership in substance, unless there are special circumstances under which the obligation to transfer ownership and payment of each share are indivisible by the parties' declaration of intent, and it is possible for some co-owners to cancel a sales contract for the co-ownership based on a buyer's failure to perform his/her obligation to pay the purchase price. When one of the parties expressed his/her intention not to perform his/her obligation in advance in a bilateral contract, the other party may rescind the contract without a peremptory notice for performance or a offer to perform his/her own obligation.

[1] Article 172 of the Commercial Act / [2] Article 539 of the Civil Act / [3] Article 539 of the Civil Act / [4] Articles 186 and 449 of the Civil Act / [5] Articles 186 and 568 of the Civil Act / [6] Article 120 of the Civil Act / [7] Article 130 of the Civil Act / [8] Article 543 of the Civil Act / [9] Article 544 of the Civil Act / [10] Articles 539, 543, and 548 of the Civil Act / [11] Articles 263 and 547 (1) of the Civil Act

[1] Supreme Court Decisions 90Nu2536 delivered on December 26, 1990 (Gong1991, 660) 93Da50215 delivered on January 28, 1994 (Gong1994, 830) 97Da5979 delivered on May 12, 1998 (Gong1998, 16199) / [3] 94Da5481 delivered on January 26, 1996 (Gong196, 798, 795, 1995) / [2] 97Da9498 delivered on October 24, 1997 (Gong196, 726, 199) / [2] 97Da9498 delivered on April 39, 195

Plaintiff (Attorney Yoon Young-young et al., Counsel for the plaintiff-appellant)

Defendant 1 and two others (Attorneys Park Gi-soo et al., Counsel for the defendant-appellant)

may 12, 2006

1. From Nonparty 1, Defendant 1, and Defendant 2 are paid KRW 2,250,00,000, respectively, and Defendant 3 is paid KRW 575,000,000 as well as KRW 575,00,00 in each real estate listed in the separate sheet, and Defendant 1 and Defendant 2 are paid KRW 38,00 in each of the real estate listed in the separate sheet, and Defendant 3 will implement the registration procedure for transfer of ownership based on sale as of June 11, 199, respectively.

2. The plaintiff's primary claim and the first conjunctive claim and the second preliminary claim against the defendant 1 and the second preliminary claim against the defendant 2 are dismissed, respectively.

3. Of the costs of lawsuit, the part arising between the plaintiff and the defendant 3 shall be borne by the defendant 3, while the part arising between the plaintiff, the defendant 1 and the defendant 2 shall be divided into three parts, and one of them shall be borne by the plaintiff, and the remainder by the defendant 1 and the defendant 2.

The primary purport of the claim: Defendant 1, Defendant 2, and Defendant 3, each of whom was paid KRW 862,500,000, and KRW 575,000,000 from the Plaintiff, and Defendant 3, together with each of the real estates listed in the separate sheet (hereinafter “instant real estates”) to the Plaintiff, shall implement the procedure for the registration of ownership transfer on the ground of sale as of June 11, 199, with respect to each of the real estates listed in the separate sheet (hereinafter “instant real estates”); and Defendant 3 shall implement the procedure for registration of ownership transfer on the ground of sale as of June 11, 199.

Preliminary Claim 1: The Defendants shall pay to each Plaintiff the amount of KRW 7,700,000,000 and the amount of KRW 20% per annum from June 26, 1999 to July 15, 200 by the service date of a copy of the application for modification of the claim and the cause of the claim, and from the next day to the day of complete payment.

The claim No. 2: from Nonparty 1, Defendant 1, and Defendant 2, each of which was paid KRW 862,50,000, and Defendant 3, each of which was paid KRW 575,000,000, and at the same time, Defendant 1 and Defendant 2 among the real estate in this case were paid to the Plaintiff, and Defendant 3, each of which was paid to 3/8, respectively, and Defendant 3, each of which was paid to 2/8, each of which was sold on June 11, 199.

1. Basic facts

The following facts are without dispute between the parties, Gap evidence 1, 2-1, 3-4, Gap evidence 5, Gap evidence 6-1 through 18, Gap evidence 8, 9 (a delegation letter, defendant 1, and defendant 2). The defendant 2 acknowledged the authenticity of Gap evidence 9, Eul evidence 2-1, Eul evidence 2-1, Eul evidence 2-1, Eul evidence 2-1, Eul evidence 3-2, Eul evidence 2-1, Eul evidence 2-1, Eul evidence 2-1, Eul evidence 2-2, defendant evidence 2-1, Eul evidence 2-3, defendant evidence 2-1, Eul evidence 2-2, defendant evidence 2-1, defendant evidence 2-3, defendant evidence 2-1, defendant evidence 2-2, defendant evidence 2-1, defendant evidence 2-1, defendant evidence 3-2, defendant evidence 5, defendant evidence 2-1, defendant evidence of the above facts.

A. The deceased non-party 3, as the owner of the instant real estate, operates the “(name omitted)” farm in the instant real estate, and the non-party 4 corporation producing feed and edible milk in the Cheongju, respectively, and as his family members, made the non-party 5, 6, 7, and 1 and 3 of his wife, and the non-party 2 was the husband of the instant real estate and the non-party 2 was the spouse of the non-party 6 and the non-party 2 was the legal administrator from February 12, 192 to the non-party 4 as the legal administrator.

B. When Nonparty 3 died on August 10, 1985, Nonparty 5, 6, and 7, his wife, reported the renunciation of inheritance to this court on November 5, 1985. Defendant 2 and Defendant 1, his heir to Australia, as the remaining inheritor, jointly inherited the shares of 3/8 of the instant real estate and 2/8 of the instant real estate. On February 25, 1986, Defendant 3, a South-North, jointly inherited the shares of 3/8 of the instant real estate, and completed the registration of transfer according to the respective shares of the Defendants on the instant real estate due to the inheritance.

C. The Defendants: (a) around June 11, 1999, at the office of Nonparty 2, at the time of Nonparty 8 Co., Ltd. around June 11, 1999, paid KRW 10,000,000 for the instant real estate with Nonparty 1, the representative director of Nonparty 8 Co., Ltd. at the time; (b) KRW 2,000,000 for the first intermediate payment 2,00,000 for the first intermediate payment 1, 1999; and (c) KRW 3,00,000 for the second intermediate payment 3,00,000,00 for the second intermediate payment 1, 1999; (c) the remainder 3,00,000,000,000 for each special agreement was received on July 9, 199; and (d) the seller shall submit all other documents to the buyer’s name or other documents to which the purchaser would issue the pertinent real estate after entering into a sale contract (3).

D. In order to establish the Plaintiff Company, the promoters, including Nonparty 1 and 9, prepared the Plaintiff Company’s articles of incorporation and accepted shares on June 19, 199, and, at the same time, held an inaugural general meeting to appoint Nonparty 9 as the promoters’ representative and approved the Plaintiff Company’s articles of incorporation. Nonparty 1, 9, 10, and 11 were appointed as the director of the Plaintiff Company. On June 21, 1999, the Plaintiff Company completed the registration of incorporation of the Plaintiff Company on the grounds that the head office is located in Chungcheong North Korea (detailed address omitted), the representative director, Nonparty 9, and the creation and operation of the objective venture complex.

E. On June 18, 199, the Defendants opened a family council to agree that “The sales price of the instant real estate shall be deposited into the passbook of Defendant 1 and Defendant 3, the mother of Defendant 2, and the repayment of the debt borrowed on behalf of Nonparty 4 and the Defendants shall be repaid money to the borrower in the name of the lender, and Defendant 2, the nominal owner of the deposit passbook, shall be reimbursed the debt in the name of the lender, and as to the remaining money after the total liquidation, Defendant 1 and Defendant 3 shall be stationed at the family council and explain and divide the details of the debt repayment in the past.” In order to clarify the contents, Defendant 1 and Defendant 3 delegated all the authority on the sale of the instant real estate to Defendant 2 on June 19, 199, and Defendant 2 again delegated Nonparty 2 with all the authority on the receipt and disposition of the sales price of the instant real estate.

F. On June 11, 1999, the date of the conclusion of the contract, Nonparty 1 paid the Defendants the first intermediate payment of KRW 2,000,000,000,000 to Nonparty 2 and Defendant 3 on June 21, 1999, respectively, and Nonparty 2 paid the second intermediate payment of KRW 3,70,000,000 to Nonparty 2 on June 28, 1999. Nonparty 2 opened the national bank account in his name and Defendant 2 on June 11, 199, and deposited the sales amount received from Nonparty 1 in the national bank account in his name of Defendant 2 (Account number omitted) and deposited it again in his account number (Account number omitted) on the same day.

G. On the other hand, on June 26, 199, Defendant 1 and Defendant 2 sent facsimile to Nonparty 8 Co., Ltd., the representative director of which Nonparty 1 was Nonparty 2, with the content that “I do not have the right to receive the second intermediate payment and the balance to be paid in the preceding way, so I requested Defendant 1 and Defendant 2 to make a direct payment.” On June 28, 1999, Defendant 1 confirmed that Nonparty 1 was by telephone to Nonparty 8 Co., Ltd. and received facsimile of the above contents.

H. On August 3, 1999, Defendant 1 and Defendant 2 filed a complaint with Nonparty 2 with the Seoul District Prosecutors’ Office on the following: “When Nonparty 2 received KRW 8,000,000,000 from Nonparty 1 the down payment out of the purchase price of the instant real estate, the sum of KRW 2,280,000,000 from Nonparty 1, the second intermediate payment of KRW 6,000,000,000,000, the remainder of Nonparty 4 and the Defendants’ repayment of KRW 5,720,000,000, which remains after Nonparty 4 and the Defendants’ repayment of KRW 5,720,000,00 to the Defendants, Nonparty 2 did not return it.” However, Nonparty 2 was subject to a disposition of non-prosecution on or around December 4, 200.

I. Meanwhile, on November 17, 1999, when Nonparty 2 was investigated as the above criminal complaint case, Nonparty 2 deposited the Defendants as the principal deposit with the payment deposit (hereinafter “the deposit of this case”) of KRW 6,900,867,562 remaining after repayment of the Defendants’ total debt amounting to KRW 7,700,00,000 received by himself as the gold 1788 in 99.

(j) On October 23, 200, Defendant 3 filed a lawsuit against Defendant 1 and Defendant 2 claiming the assignment of claims against Defendant 1 and Defendant 2 regarding the instant deposit money by asserting that the remainder amount remaining after paying the Defendants’ obligations out of KRW 7,700,00,000 of the said real estate purchase price is also his own share, and around May 23, 2001, Defendant 1 and Defendant 2 also filed a lawsuit claiming the assignment of claims against Defendant 3 on the said claim for payment of deposit money. On September 26, 201, Defendant 1 and Defendant 2 also filed a lawsuit against Defendant 3 by asserting that the aforementioned claim for payment of deposit money belongs to the share ratio of the instant real estate owner. The Defendants received a final judgment of Defendant 201, 2001Ga1895, which became final and conclusive but became final and conclusive on September 26, 2001, but were also subject to a final and conclusive judgment of Defendant 201, 2005.

(k) Nonparty 1, while holding the office of Nonparty 8’s representative director, agreed not to vest a approximately KRW 68.6 billion net assets held by investing in the offshore fund APAI (ASA PAC PAF PAE INVEMND) with the funds of Nonparty 8, but to divide it with Nonparty 9,12 at will. Nonparty 1, on March 2000, convicted the Plaintiff at will, after selling it in the name of Nonparty 8’s company, Defendant 2 million net stocks purchased by the APAI 0.75 0.75 per week, Defendant 1 voluntarily deposited the funds in the Hong Kong account and then released them at the price of 9.21 times the new stocks (the number of Nonparty 1 omitted) and then released them at the price of 10,000,000 won per week to Nonparty 8’s 1,000,000 won.

Other. On July 30, 2002, Nonparty 1 sent each content-certified mail to the Defendants, in the name of Nonparty 8 corporation, one of which is the actual representative directors, stating that “A contract of this case was cancelled and returned to the buyer the purchase price of this case already paid, or a plan was selected to transfer the real estate to the buyer without paying the balance, and Nonparty 1 demanded answers by August 14, 2002.” On September 3, 2002, Nonparty 1 sent each content-certified mail stating that “A request by September 14, 2002 for the defendants’ answers to the same proposal as the above is required by the defendants by September 14, 2002.”

(m) On April 22, 2003, the Plaintiff Company filed a provisional attachment order against the Plaintiff Company by applying for the Defendants’ right to claim payment of the instant deposit money and the provisional attachment on the instant real estate as the preserved right, which was around 22, 2003. Defendant 1 and Defendant 2 applied for a provisional attachment order against the Plaintiff Company around July 2004, the Plaintiff Company added the first preliminary claim in the instant lawsuit.

2. Judgment on the main claim and the first preliminary claim

A. The parties' assertion

(1) The plaintiff company's assertion

(A) The primary claim

At the time of the conclusion of the instant sales contract, the Plaintiff Company was an incorporated company, and Nonparty 1, the promoters and directors of the Plaintiff Company, entered into the instant sales contract with the Defendants. Article 2(2) of the Special Agreement stipulates, “The purchaser is determined according to the trade name at the time of conversion into a corporation, and the purchaser submits documents for issuance of the seller’s seal impression and registration as designated.” Since the Plaintiff Company was established, the Plaintiff Company becomes a party to the instant sales contract.

Therefore, the Defendants were paid KRW 2,300,000,000 from the Plaintiff Company according to the respective shares of the Defendants, and at the same time, are obligated to implement the registration procedure for transfer of ownership based on each share of the Defendants among the instant real estate to the Plaintiff Company.

(B) 1 Preliminary Claim

If the sales contract of this case was lawfully rescinded as argued by the Defendants, the Defendants are obligated to refund the Plaintiff Company, the purchaser of the real estate of this case, the amount of KRW 7,700,000,000 (2,000,000 + the first intermediate payment of KRW 2,00,000,000 + the second intermediate payment of KRW 3,70,000,000) and damages for delay.

(2) The defendants' assertion

① The buyer of the instant sales contract is Nonparty 1, not the Plaintiff Company, and thus, the Plaintiff Company did not have the right to claim for ownership transfer registration against the Defendants. ② Nonparty 1 had the Plaintiff Company registered the establishment of the Plaintiff only on June 21, 1999 and entered into the instant sales contract with the Defendants on June 11, 199 to directly acquire the ownership of the instant real estate. Thus, the instant sales contract is deemed to be a summary of Nonparty 1, the Defendants’ abortion, and the Plaintiff’s beneficiary, and the Defendants are Nonparty 1, not the Plaintiff Company, who is not the Plaintiff Company. Accordingly, the Defendants are obligated to pay the remainder of the instant sales contract to the Plaintiff Company at the same time to perform the ownership transfer registration procedure with respect to each of their respective shares of the instant real estate. Thus, the Plaintiff Company’s primary claim and the preliminary claim are without merit.

(b) Markets:

(1) The party to the instant sales contract

(A) When the authenticity of a dispositive document is recognized, the existence and content of the declaration of intent according to the contents of the document must be recognized unless there is any reflective proof. In the interpretation of the declaration of intent, if the party’s genuine intent is not known, it shall be interpreted by an act externally expressed without the party’s internal deliberation (see, e.g., Supreme Court Decision 97Da11133, Nov. 28, 1997). In a case where there is a difference between the parties about the interpretation of a contract, and the interpretation of the party’s intent expressed in the dispositive document is at issue, such interpretation shall be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the contents of the text, motive and circumstance of the agreement, the purpose to be achieved by the agreement, the party’s genuine intent, etc. (see, e.g., Supreme Court Decision 200Da4517, Apr. 11,

(B) First of all, according to the sales contract for the Defendant 10, Nonparty 2, who was the purchaser of the instant real estate, was indicated as Nonparty 1’s purchaser under the terms and conditions of the sales contract for the instant case. Nonparty 2, who was not the purchaser of the instant real estate, was not the purchaser of the instant real estate. Nonparty 1, who was the purchaser of the instant real estate, was not the purchaser of the instant real estate. Nonparty 2, who was the purchaser of the instant real estate, was not the purchaser of the instant real estate. Nonparty 1, who was the purchaser of the instant real estate, was the purchaser of the instant real estate, and Nonparty 2, who was not the purchaser of the instant real estate, was the purchaser of the instant real estate, and the purchaser of the instant real estate was not the purchaser of the instant real estate, and Nonparty 1, who was the owner of the instant real estate, was the purchaser of the instant real estate, and the purchaser was not the purchaser of the instant real estate, and the purchaser was not the purchaser of the instant real estate for 000 months.

(2) As to whether the Plaintiff becomes a party to the instant sales contract, as a matter of course, to the company established at the time of entering into the instant sales contract

(A) The term “company during the process of incorporation” means a classical concept established by the articles of incorporation to explain the relationship between the rights and duties acquired by promoters as a result of the act necessary for the establishment of the company and the relationship attributable to the established company at the same time as the establishment of the company, and only when the promoters have acquired at least one share of shares at least one share of the promoters. The rights and duties acquired by promoters prior to the establishment of the company as a company in the process of incorporation are attributed to the promoters or the promoters’ associations according to specific circumstances. In order to revert the rights and duties vested with them to the company after the establishment of the company, special transfer, such as acquisition by transfer or assumption of obligations, must be conducted (see Supreme Court Decisions 90Nu2536, Dec. 26, 1990; 97Da56020, May 12, 1998

(B) In the instant case, there is no evidence to acknowledge that the Plaintiff Company naturally became a party to the instant sales contract by concluding the instant sales contract as a promoter of Nonparty 1’s company during its establishment, and that the Plaintiff Company was an incorporated company at the time of the conclusion of the instant sales contract (see, e.g., evidence No. 5., the promoters who intend to establish the Plaintiff Company, including Nonparty 1, should prepare the Plaintiff Company’s articles of incorporation and take over the Plaintiff Company’s shares after June 19, 199, which was after the date of conclusion of the instant sales contract. Since the instant sales contract was concluded before the Plaintiff Company’s incorporation was equipped with the substance, the rights and obligations acquired by Nonparty 1 through the instant sales contract are once attributed to Nonparty 1, and it is not transferred to the Plaintiff Company after its establishment unless there was any separate transfer).

(C) Therefore, this part of the Plaintiff Company’s assertion on the premise that the Plaintiff Company was an incorporated company at the time of concluding the instant sales contract is without merit.

(3) Sub-decisions

Thus, the parties to the contract of this case are the defendants, the buyer, and the non-party 1. Therefore, all of the plaintiff company's primary claims and the first preliminary claims on the premise that the plaintiff company is the buyer of the contract of this case are without merit.

3. Judgment on the second preliminary claim

A. The parties' assertion

(1) The plaintiff company's assertion

Even if the purchaser of the instant sales contract is Nonparty 1, not the Plaintiff Company, the instant sales contract is a summary of Nonparty 1, the Defendants’ abortion, and the Plaintiff Company’s beneficiary of the Plaintiff Company, and the Plaintiff Company, as the beneficiary of the instant sales contract, expressed its intent of profit by serving the Defendants, the seller, on March 7, 2006, an application for modification of the purport of the claim and the cause of the claim, and Nonparty 1 paid to the Defendants both the secondary intermediate payments. As such, the Defendants are obliged to pay KRW 2,300,000 from Nonparty 1 in proportion to the Defendants’ respective shares. At the same time, the Defendants are obligated to implement the ownership transfer registration procedure for each share of the Defendants of the instant real estate to the Plaintiff Company based on the instant sales contract.

(2) The defendants' assertion

(A) Defendant 1 and Defendant 2:

1) With respect to the agreement on the transfer of the right to claim ownership transfer registration or the interim omission registration: Nonparty 1 sent a written confirmation (Evidence No. 13) to the Defendants on July 30, 2002 on the premise that Nonparty 1 received the right to claim ownership transfer registration from the court in a criminal case, that “the Plaintiff Company shall obtain the right to claim ownership transfer registration of the instant real estate acquired by the Plaintiff Company in the name of Nonparty 8 Co., Ltd.” (Evidence No. 14). The Plaintiff Company transferred the right to claim ownership transfer registration to Nonparty 8 Co., Ltd. or entered into an agreement on the interim omission registration directly moving the instant real estate in the name of Nonparty 8 Co., Ltd., and in fact, Nonparty 8 Co., Ltd. sent the content-certified mail (Evidence No. 13) to the Defendants on July 30, 2002 on the premise that he received the right to claim ownership transfer registration from the Plaintiff Co. 1, Defendant 206 and May 10, 2006.

2) Regarding the lawful payment of the second intermediate payment: ① Defendant 2’s power of attorney prepared by Nonparty 2 to Nonparty 2 on June 21, 1999 (hereinafter “instant power of attorney”) was affixed with Defendant 2’s signature affixed to blank, but later Nonparty 2 forged it (the assertion on the delegation letter). ② Even though the instant power of attorney was not forged, Nonparty 2, who was granted the power of attorney from Defendant 2 to receive the instant purchase price, is in the status of a sub-agent against Defendant 1. Since Defendant 1’s agent, appointed Nonparty 2 as a sub-agent without Defendant 1’s consent or any inevitable reason, it is unlawful for Defendant 2 to appoint Nonparty 2 as a sub-agent, and the part regarding Defendant 1 (the amount received) of the intermediate payment was received by Nonparty 2 to Nonparty 1 and the part regarding the intermediate payment received by Nonparty 2 to Defendant 2, who was not entitled to receive the intermediate payment from Defendant 1 and the part regarding the intermediate payment received by Nonparty 2 to Nonparty 1 and Nonparty 2’s.

(B) The Defendants:

With respect to the cancellation of the sales contract of this case, ① Nonparty 1 made two times on July 30, 2002 and September 3, 2002, “to return KRW 7,700,000 paid by the purchaser and to cancel the sales contract of this case.” Defendant 3, representing the Defendants, agreed to cancel the sales contract of this case with Nonparty 1 by visiting Nonparty 8 Co., Ltd.., and even if there was no such agreement, the Defendants asserted that the sales contract of this case was cancelled by delivery of the reply and preparatory document (Defendant 1, Defendant 2, Oct. 14, 2004; Defendant 3 obtained an application for cancellation of the sales contract of this case from Nonparty 1 to Nonparty 2 on March 10, 206). Thus, the agreement of this case was cancelled (the assertion that the contract of this case was rescinded). ② Defendant 3, representing the Defendants’ intent to cancel the sales contract of this case on the premise that the contract of this case was cancelled on the premise that the Defendants had received the deposit of this case.

(b) Markets:

(1) As to whether the Plaintiff Company is a beneficiary of the instant sales contract

(A) A contract for a third party;

1) The term "a contract for a third party" in Article 539 of the Civil Act means a contract, the purpose of which is to have a third party acquire rights directly by a contract entered into in the name of the contracting party, unlike that the contract has been entered into with an intention to take effect only between the parties. This contract is: (i) unless its contents are contrary to social order or are contrary to the third party's interests, and the right to claim ownership transfer registration is not enforced by interpretation of other Acts and subordinate statutes, and there is no reason to deny its validity in accordance with the principle of the Civil Code of the private autonomy that respects the parties' intentions, and (ii) since the deceased has agreed to have a third party acquire the right to claim ownership transfer registration directly from the time of conclusion of the contract in that the third party was anticipated to have the right to claim ownership transfer registration from the time of transfer; and (iii) since the contracting party is still a summary and a abortion, there is no room to damage trust between the contracting party and the third party's right to claim ownership transfer registration in the future.

2) Even if a third party has not yet established at the time of the contract, it may be deemed a third party if the formation of a juristic person is anticipated in the future. Whether a contract constitutes a contract for a third party is a matter of interpretation of intent to directly acquire the right of a third party under the contract. This is a matter of interpretation of intent to determine whether a party is a contract for a third party. This is a reasonable interpretation of intent of the party to the contract by comprehensively taking into account all the circumstances such as the purpose of the contract, the nature of the act of the party in the contract, the understanding loss, transaction practices arising between the parties or between the third party due to the contract, and the social function of the contract system for the third party (see Supreme Court Decision 94Da5481, Jan. 26, 199

(B) In the instant case, as to whether the Plaintiff Company is a beneficiary of the contract for the third party and is entitled to claim for ownership transfer registration against the Defendants, the seller of the instant sales contract is Nonparty 1, Nonparty 1, Nonparty 5, and Nonparty 2, and the purchaser of the instant contract, Nonparty 30, and Defendant 1’s written evidence No. 11, No. 30, No. 11, and Defendant 11, respectively. In other words, the following circumstances are acknowledged: ① the purchaser was determined according to the trade name at the time of conversion of the instant sales contract, and the Defendants were to submit documents for the issuance of seal impression and registration of the Plaintiff Company’s ownership transfer to Nonparty 1. The Defendants were to be established pursuant to Nonparty 6’s agreement that the Defendants were to acquire ownership transfer registration of the instant real estate from Nonparty 1, the Plaintiff Company was to acquire ownership transfer registration of the instant real estate from Nonparty 1, 200, and the Defendants were to obtain ownership transfer registration of the instant real estate from Nonparty 1, 2006.

(2) As to the agreement on the transfer of the right to claim the transfer of ownership by Defendant 1 and Defendant 2 or the registration of intermediate omission, and the invalidity of anti-social order

(A) As to the claim for transfer of ownership transfer registration

1) In a case where real estate was transferred by a transfer of real estate, the final transferee cannot directly request the first transferor to register the ownership transfer under his own name unless there is an agreement on the transfer of real estate, and the final transferee may not request the first transferor to register the ownership transfer in order to exercise the first transferor's right to directly the right to claim the transfer transfer registration on the grounds of an agreement on the registration of middle omission. In other words, it is required that there was an agreement on the omission of the intermediate registration between the first transferor and the final transferee, in addition to the agreement between the first transferor and the interim transferee on the registration of middle omission. Thus, even if the final transferee received the right to claim the transfer registration from the intermediate transferee, if the first transferor does not consent to the transfer, the final transferee may not request the first transferor to implement the transfer registration procedure on the grounds of the transfer of ownership (see Supreme Court Decision 9

2) In the instant case, the Plaintiff Company and Nonparty 8 did not agree on the transfer of ownership registration under the name of Nonparty 8 Company and Nonparty 8 Company. According to the health account statement No. 13, Eul evidence No. 10-2, and Eul evidence No. 14, the Plaintiff Company and Nonparty 8 Company paid 2,300,000 won to Nonparty 8 Company as soon as possible for the real estate listed in the separate list located in Chungcheongbuk-gun, and decided to complete the registration of ownership transfer of the above real estate under the name of Nonparty 8 Company (paragraph 1). The Plaintiff Company confirmed that it did not reach an agreement on the transfer registration under the name of Nonparty 8 Company with the liquidation procedure after completing the registration of ownership transfer, and that it did not receive an agreement on the transfer registration under the premise that it would transfer the above real estate to Nonparty 8 Company and that it would transfer the ownership of the above real estate to Nonparty 8 Company by way of distribution of the remaining property under the name of Nonparty 1 Company and that it did not have any content of the agreement between the Defendants Company 80 and the Defendants’ claim for ownership transfer.

Therefore, this part of the assertion by Defendant 1 and Defendant 2 is without merit without further review.

(B) As to the assertion of the interim omission registration agreement

(1) Agreement on the intermediate omission registration

A) In order to exercise the right to claim the transfer registration of ownership directly to the first transferor on the grounds of an agreement on the intermediate omission registration, it is required that there was an agreement omitting the intermediate registration between the first transferor and the last transferee, in addition to the agreement between the first transferor and the last transferee on the interim omission registration (see Supreme Court Decision 93Da47738 delivered on May 24, 1994, etc.).

B) The agreement on the intermediate omission registration is merely an agreement between the parties that each sales contract should be completed in the future from the first seller on the premise that each sales contract is valid in the event of the sale of real estate before the transfer. Thus, such agreement is concluded, and the first seller does not restrict the exercise of the right to claim the purchase price held by the intermediary who is the buyer under the sales contract he/she became a party, or the exercise of the right to claim the transfer of ownership against the first seller who is the buyer (see Supreme Court Decision 2003Da66431, Apr. 29, 2005, etc.).

2) In the instant case, first, according to the health class, Eul evidence Nos. 10-2, Eul evidence No. 10-2, and evidence No. 14 as to whether all the parties concerned had jointly agreed, the Plaintiff Company and the non-party No. 8 corporation have agreed to register the ownership transfer of the instant real estate between the non-party No. 8 corporation and the non-party No. 8 corporation, but it is recognized that the method was agreed to register the ownership transfer between the Plaintiff Company and the non-party No. 8 corporation, but the agreement cannot be deemed to have been reached solely on the ground that such agreement was concluded between the Plaintiff Company and the non-party No. 8 corporation, and the above three Defendants, and there is no other evidence to acknowledge it. Even if there was an agreement between the above three parties on the interim omission registration, the agreement on the interim omission registration is merely merely to complete the registration of ownership transfer from the first seller for the convenience of its implementation, so it does not restrict the exercise of the Plaintiff Company’s right to claim the ownership transfer against Defendant No.

Therefore, this part of the assertion by Defendant 1 and Defendant 2 is without merit.

(C) As to the assertion on invalidity of anti-social order

1) As Defendant 1 and Defendant 2 used the instant sales contract to conceal the money embezzled by Nonparty 1 and 9 in Nonparty 8 Co., Ltd., Defendant 1 and Defendant 2 asserted that the instant sales contract constitutes anti-social order and thus null and void.

2) According to Gap evidence Nos. 32 and Eul evidence Nos. 11-6 and 7, the non-party 1 paid 4,900,000 won out of the down payment of the sales contract of this case and the intermediate payment of KRW 5,700,000,000 (or the payment of KRW 800,000,000 out of the paid-in capital of the plaintiff company) as personal money, and it is difficult to view that the non-party 1 paid 6,900,000,000 won for the purchase of real estate of this case to be personal from the funds of this case, and the non-party 1 paid 00,000 won to the non-party 2,000,000 won for the purchase of real estate of this case as 00,000 won for new shares offering and the non-party 1 paid 0,000 won to the non-party 2,000,000 won for new shares offering.

Therefore, this part of the assertion by Defendant 1 and Defendant 2 is without merit.

(3) As to the validity of the second intermediate payment

(A) As to the assertion that Defendant 1 and Defendant 2 are illegal as to the allegation

1) Article 120 of the Civil Act provides, “The appointment of a sub-agent shall not be made unless the principal gives his consent or there is any inevitable reason,” and in principle, it does not recognize the appointment of a sub-agent. However, the principal’s consent is exceptionally possible unless the principal gives his consent or unavoidable reasons exist. However, in a case where the principal’s consent requires processing by his/her agent due to the nature of a juristic act which is the object of his/her agency, i.e., in a case where the principal’s consent is important, it is difficult to recognize that there exists an implied consent as to the appointment of a sub-agent (see, e.g., Supreme Court Decisions 94Da30690, Jan. 26, 1996; 97Da56099, Sept. 3, 199).

2) In the instant case, as to whether Defendant 1, who is the principal, consented to the appointment of Nonparty 2’s sub-agent or implied consent, the following circumstances acknowledged as follows: ① Defendant 1 and Defendant 2, upon receiving KRW 2,00,00 of the instant sales contract’s down payment from Nonparty 1 to Nonparty 2’s intermediate payment, and upon receiving KRW 2,00,00,00 from Nonparty 2’s criminal complaint, agreed to receive the intermediate payment from Defendant 2 and then divide the payment to Defendant 2’s advance payment from Nonparty 1 to Defendant 2, in light of the following circumstances: (a) Nonparty 2’s consent to the appointment of Nonparty 2’s sub-agent; and (b) Defendant 1, upon receiving the intermediate payment from Nonparty 1 to Nonparty 2’s non-party 1’s non-party 2’s non-party 2’s non-party 1’s non-party 2’s non-party 1’s non-party 2’s receipt of the remainder payment from Defendant 10, 20.

(B) As to the claim on the termination of delegation by Defendant 1 and Defendant 2

1) A delegation contract under the Civil Act may be terminated at any time in light of the nature of a delegation contract based on a special fiduciary relationship between both parties, whether it is a quid pro quo contract or a free contract. In this case, the grounds for termination of delegation cannot be set up against the other party unless it is notified to the other party or it is known to the other party.

2) In the instant case, if Defendant 1 and 2 were to have known Nonparty 2 to the effect that the intermediate payment was terminated by Nonparty 2’s non-party 9’s non-party 1’s non-party 2’s right to receive the intermediate payment, and Defendant 1 demanded the Plaintiff Company to pay the intermediate payment to the non-party 2, not the non-party 2’s non-party 9’s non-party 2’s non-party 2’s non-party 9’s non-party 2’s non-party 2’s non-party 9’s non-party 2’s non-party 2’s non-party 9’s non-party 2’s non-party 2’s non-party 2’s non-party 9’s non-party 2’s non-party 9’s non-party 2’s non-party 2’s non-party 9’s non-party 2’s non-party 9’s non-party 2’s non-party 9’s non-party 16’

3) Therefore, barring any special circumstance, the part concerning Defendant 1 and Defendant 2 out of the second part of the intermediate payment that Nonparty 1 paid to Nonparty 2 is invalid as a payment made to a person who has no authority to receive the purchase price upon termination of delegation.

(C) As to the assertion of implied ratification by the Plaintiff Company’s unauthorized representation

1) The plaintiff company's assertion

As to this, even if there is any defect in Nonparty 2’s secondary intermediate payment right delegated by Defendant 1 and Defendant 2, the Plaintiff Company calculated the amount of embezzlement of Nonparty 2 on the premise that: (a) in a case of criminal complaint by embezzlement of Nonparty 2, including the secondary intermediate payment, all of Nonparty 2 received 7,700,000,000 won; (b) in the investigation agency on November 9, 1999, the Defendant 1 would have the right to distribute 80,000 won owned by Nonparty 2 according to the Defendants’ share; (c) in light of the fact that the Plaintiff Company had the right to receive the intermediate payment of this case’s second intermediate payment from 00,000,000 won received by Nonparty 2; and (d) in the lawsuit of this case, the Plaintiff Company actively asserted that it received the intermediate payment of this case’s deposit from 00,000,0000 won to 0,0000 won received the intermediate payment of this case’s second intermediate payment.

(ii) the board;

A) If a person disposes of another person's rights in his/her own name or with his/her own right and then such disposition is recognized, the above disposition shall take effect to the person himself/herself, unless there is any special reason to the contrary, and the validity of an unauthorized representation shall be determined depending on the existence of ratification by the person himself/herself. The ratification is a sole act with the knowledge of the act of unauthorized representation and the effect of such act is to vest in the person himself/herself, and it does not require a certain method with regard to the method of declaration of intention, so it shall not be asked explicitly or implicitly, and the other party to the declaration of ratification shall be an unauthorized agent or the other party (see Supreme Court Decisions 88Meu181, Mar. 27, 1990; 89Meu2100, Apr. 27, 1990; 92Da19033, Oct. 27, 1992, etc.).

B) In the instant case, it is difficult to view that Nonparty 1 and Defendant 2 were aware of their intent to vest in the above part of the intermediate payment by Nonparty 2, the Defendant 1 and the part of the intermediate payment by Nonparty 1 and Nonparty 2’s claim for reimbursement of 00 billion won x Defendant 2’s claim for reimbursement of KRW 00,000,000 for the following reasons: (i) Defendant 1 and Nonparty 2 were charged with embezzlement of Nonparty 2; and (ii) Defendant 1 could have known that the remaining part of the intermediate payment by Nonparty 2 did not amount of KRW 00,000,000,000,000 were received by Nonparty 2; and (iii) Defendant 2 would not have known that the remaining part of the intermediate payment by Nonparty 1 and Nonparty 2 were not received by the Defendants’ claim for reimbursement of 00,000 won; and (iv) the remaining part of the intermediate payment was not received by the Defendants’ claim for reimbursement of 00,000 won.

(D) Sub-committee

Therefore, barring any special circumstance, Defendant 1, and Defendant 2 received 2,250,00,000 won [2,387,500,000 won (3,700,000 x 3/8) in the second intermediate payment 1,387,50,000 x 3/8) + 862,50,000 for the remainder payment (2,30,000,000 x 3/8), and Defendant 3 received 575,00,000 for the remainder payment of the sales contract of this case (2,30,000,000 x 2/8) as the remainder payment of the sales contract of this case. At the same time, Defendant 3 is liable for the Plaintiff Company to implement the ownership transfer procedure for each share of the Defendants among the real estate of this case.

(4) As to the cancellation of the instant sales contract

(A) As to the Defendants’ assertion of cancellation of agreement

1) The cancellation of a contract is another contract with the purport of generating the same effect as that of the parties already concluded. In order to cancel an agreement formed by an agreement between the parties, the requirement is that the parties agree with the offer and acceptance of the rescission contract with the intent to terminate the validity of the existing contract, as in the case of the formation of the contract. To establish such an agreement, the content of the parties’ expressed act must be objectively identical. The cancellation of the agreement may be implicitly made. However, in order to have the contract terminated implicitly, the parties’ intent not to realize the contract should be agreed upon due to the lack or renunciation of their intent to realize the contract after the formation of the contract (see Supreme Court Decision 98Da17602 delivered on August 21, 1998).

2) In the instant case, around September 2002, Nonparty 1 proposed that the Defendants cancel the instant sales contract. According to the health department, evidence Nos. 13, and evidence Nos. 13 as to whether the instant sales contract was terminated upon Nonparty 3’s consent to the proposal for cancellation of the sales contract, Nonparty 1’s proposal to the Defendants, the Defendants, in the name of Nonparty 8 Co., Ltd., with which Nonparty 1 was the actual representative director on two occasions on July 30, 2002 and September 3, 2002, “the instant sales contract was rescinded and the sales price was KRW 7,700,000,000 paid, or the real estate was transferred to the purchaser without payment of the balance, but it is recognized that Nonparty 1’s proposal was invalid in light of the above contents, and it is difficult to deem that the Defendants’ offer was cancelled at the time of the cancellation of the instant sales contract, and there is no evidence to acknowledge it as Defendant 3’s consent.

3) In addition, the defendants asserted that the contract of this case was terminated by accepting the plaintiff's offer to cancel the contract of this case as a preparatory document of this case. However, although the non-party 1's offer to cancel the contract of this case cannot be viewed as an offer to cancel the contract of this case, it cannot be viewed as an offer to cancel the contract of this case in principle, in making an offer to conclude the contract of this case, the offer can not be withdrawn. However, if the period of acceptance is set, the offer is invalid if the period of acceptance is set, and if not, if the reasonable period of acceptance exists, the offer is set, and if the other party's offer reaches the other party's acceptance or reply is set, the reasonable period of time is set as the period necessary for the other party's acceptance and reply. This is objectively determined after the lapse of the period of acceptance after the lapse of the contract of this case's offer, important contents of the contract, transaction practice, etc. (see Supreme Court Decision 98Da48903, Jan. 29, 199).

4) Therefore, the Defendants’ assertion that the instant sales contract was terminated due to the rescission of agreement is without merit.

(B) As to the Defendants’ assertion of statutory rescission due to the remainder of the payment place

1) Whether a peremptory notice is lawful

Even if the obligee’s demand for performance exceeds the original obligation amount, if the obligee’s demand for payment is a relatively small or excessive amount of the original obligation, or the obligee knew the excessive amount of payment to the obligee with an erroneous knowledge, and thus, the obligee’s demand for payment is effective within the limit of the amount to be paid. However, where it is obvious that the obligee would not receive the payment if the obligee’s demand is obvious and the obligee would not provide it, the peremptory demand is inappropriate and the rescission of the contract based on such peremptory demand is invalid (see Supreme Court Decision 94Da54894 delivered on September 15, 1995, etc.). Accordingly, it is difficult to view that the Defendant’s demand for the discharge of the remaining amount of payment to Nonparty 8 corporation under the name of the representative director of the Plaintiff, which was actually made on July 30, 200, and September 3, 2002, the Defendants’ demand for the cancellation of the registration of ownership transfer as well as the Defendants’ demand for payment of the remaining amount to the Defendants without the above peremptory notice.

2) Whether the plaintiff company can exercise the right of rescission

In addition, in the contract for the third party, the beneficiary who has expressed his/her intent of return can directly claim the payment to the deceased-disadvantaged person, and if the summary cancels the contract, the beneficiary is entitled to claim compensation for damages that he/she suffered, but the beneficiary is not a party to the contract for the third party, and there is no right to claim restitution due to the right of rescission or cancellation (see Supreme Court Decision 92Da41559 delivered on August 12, 1994, etc.). As to this case, health expenses for the parties to the contract of this case and the plaintiff company are the parties to the contract of this case as seen earlier, and therefore, the plaintiff company, which is only the beneficiary, does not have the right to claim restitution on the ground that the contract of this case was rescinded or cancelled. Accordingly, under the premise that the plaintiff company has the right of rescission of the contract of this case, the plaintiff company's claim that claims and provisional seizure filed against the defendants constitutes the exercise of the right of rescission of the contract of this case is without merit further examined.

3) As to Defendant 1 and Defendant 2’s assertion of statutory rescission

A) While Defendant 1 and Defendant 2 did not pay the second intermediate payment, Defendant 1 and Defendant 2 asserted that the Plaintiff Company’s claim for the registration of ownership transfer of the instant real estate in return for the receipt and reimbursement of 2,300,000,000 won against the Defendants was expressed in advance that they would not perform their obligations, and thus, Defendant 1 and Defendant 2’s claim for the cancellation of the instant sales contract as a preparatory document dated April 13, 2006.

B) Each co-owner may freely dispose of shares owned by him. Thus, even where all co-owners sell all shares owned by them to the same purchaser under a single sales contract in form, a separate sales contract was established by each co-owner's own shares, barring special circumstances where the obligation to transfer ownership and pay payment are indivisible by the parties' intent. It is possible for some co-owners to cancel a sales contract for their co-owned shares on the ground of a buyer's non-performance of obligation to pay the purchase price (see Supreme Court Decision 94Da59745 delivered on March 28, 1995). In a bilateral contract, where one of the parties expressed his intention not to perform his obligation in advance, the other party may cancel the sales contract without the peremptory notice of performance or the provision of his own obligation. Thus, as to whether Defendant 1 and Defendant 2, co-owners of the real estate of this case can cancel the sales contract for each co-ownership share without the peremptory notice of performance or the provision of one's own obligation, the other party's assertion that he received the part of this case and Nonparty 2 were not entitled to receive the remainder payment.

C) Therefore, this part of the allegation by Defendant 1 and Defendant 2, premised on the lawful rescission of the instant sales contract, is without merit.

4. Conclusion

Therefore, the defendant 1, 250,000 won [1,387,50,000 won (3,700,000,000 won x 3/8) +862,50,000 won (2,300,000,000 x 3/8)] from the non-party 1, and the defendant 3 received 575,000,000 won (2,30,000,000 x 2/8) from the plaintiff company, and the defendant 1, 250,000 won from the real estate in this case and 2/8 from the plaintiff company are paid to the non-party 1,38,50,000,000 won, and the defendant 3's conjunctive claim against the plaintiff as to the non-party 2's share 28 percent as to the remaining shares as of June 11, 199.

［［별 지］ : 목록 생략］

Judges Lee Jong-man (Presiding Judge)