Impossibility of Performance and Restoration

In a sales contract, if the person holding the right of provisional registration of real estate for sale and purchase has completed the principal registration of transfer of ownership, and if the seller's obligation to transfer the ownership to the buyer is omitted by reason of the seller's failure to perform his/her obligation, it is reasonable to deem that the status of nonperformance occurs as a cause attributable to both parties. In such a case, the seller has no obligation to compensate for damages agreed to the buyer, or is liable to return the down payment and the intermediate payment, etc. received from the buyer, as such, is liable to return the down payment, etc. received from the buyer.

Articles 548 and 546 of the Civil Act

[Plaintiff-Appellee] 4289No122 decided Aug. 9, 1956 (Supreme Court Decision 5436; Supreme Court Decision 4 ② ② 58; Decision No. 546(1)451 of the Civil Code

Plaintiff

Defendant

Seoul Central District Court (68Ga5685) in the first instance trial

(1) The part against the plaintiff among the original judgment shall be revoked.

The defendant shall pay to the plaintiff the amount of KRW 300,00 and the amount at the rate of five percent per annum from June 21, 1968 to the full payment day.

(2) The plaintiff's remaining appeal is dismissed.

(3) All the costs of lawsuit shall be divided into two parts of the first and second trials, and one of them shall be borne by the plaintiff and one of them by the defendant.

The judgment of the court below that the defendant shall pay to the plaintiff 694,00 won with 5% interest per annum from November 25, 1967 to the date of full payment.

The part against the plaintiff in the original judgment shall be revoked.

The judgment of the court below that the defendant shall pay to the plaintiff 60 million won with the interest rate of 5 percent per annum from November 25, 1967 to the full payment day.

(1) On October 23, 1967, the Plaintiff provided the above non-party 1 to the non-party 6 real estate at the time of performance of the obligation, and the non-party 1 to the non-party 1 to the non-party 7 non-party 1 to the non-party 1 to the above non-party 7 real estate, and the non-party 2 to the non-party 1 to the non-party 7 non-party 1 to the non-party 2 to the non-party 3 to whom the non-party 1 to whom the non-party 6 had provided the non-party 1 to the non-party 3 to the non-party 1 to the non-party 1 to the non-party 1 to whom the non-party 6 had provided the non-party 1 to the non-party 3 to the non-party 1 to the non-party 3 to whom the non-party 1 to whom the non-party 2 had provided the non-party 1 to the non-party 1 to the non-party 1 to the counter-party 1 to the agreement.

(2) The defendant asserts that the above sales contract between the plaintiff and the defendant was cancelled on November 25, 1967 due to the plaintiff's default. However, the fact that the ownership transfer registration of the real estate was passed through the non-party 1's obligation to pay the remainder of the building and the name of the building in the concurrent performance relationship with the plaintiff's obligation to pay the remainder of the building was not prepared to provide any performance, is recognized as above, and there is no other evidence to support that the notification of the cancellation of the contract was legitimate as of November 25, 1967 by the defendant's assertion, and the plaintiff's assertion cannot be accepted. On the other hand, the plaintiff asserted that the sales contract between the plaintiff and the defendant was lawfully rescinded by the defendant's default, but the plaintiff did not have provided the obligation to pay the remainder of the building, which is one of the self-performance obligations of the plaintiff's simultaneous performance relations, and therefore, the plaintiff's allegation cannot be accepted

Therefore, the principal contract between the plaintiff and the defendant is in the state of the obligation without a fixed time limit, and as mentioned above, the ownership transfer registration of the real estate was in the state of the defendant's obligation to transfer ownership to the plaintiff as the principal registration of the real estate was passed through the non-party 1, the provisional registration right holder at the time of the sales contract. In light of the facts leading up to the principal registration of ownership transfer in the non-party 1, the above execution capacity cannot be deemed to have been caused only by the defendant's cause, and it is reasonable to deem that the above execution capacity is attributable to both the plaintiff and the defendant. In this case, the defendant has no obligation to compensate the plaintiff for damages or to restore it to its original state. Thus, the defendant is obligated to pay the down payment of the down payment of KRW 300,000 from the plaintiff and the next day after the date of the delivery of the provisional registration of this case to the defendant.

(3) However, since the original judgment partially differs from the original judgment, pursuant to Article 386 of the Civil Procedure Act, the part against the plaintiff shall be revoked and the above claim shall be accepted only with the amount calculated by the rate of five percent per annum from June 21, 1968 to the full payment date. Since the remaining appeal by the plaintiff is without merit, the remaining appeal by the plaintiff shall be dismissed. It is so decided as per Disposition by applying Articles 89, 92, and 96 of the Civil Procedure Act with respect to the bearing of litigation costs.

Judges Noh Jeong-hee (Presiding Justice)