Whether there is a reason to cancel a contract due to impossibility of performance where the store has been sold in lots at the retail store and the purpose of use has been changed to the consignment store.

According to Article 48 of the former Building Act (amended by Act No. 4381 of May 31, 191) and Article 99 (1) 1 of the Enforcement Decree of the same Act (amended by Presidential Decree No. 1365 of May 30, 192), one of the neighborhood living facilities under each subparagraph of paragraph (4) of the attached Table of the Enforcement Decree of the same Act can arbitrarily change its use without any separate permission under the same Act, and the retail store and the consignment hall are defined as neighborhood living facilities so that they can easily change their use to retail stores and use them as retail stores at the time of the cancellation of the sale contract. Thus, it is difficult to view that the reason that the use of the store at the time of the cancellation of the sale contract becomes a depository place is not in a situation where the seller’s obligation to perform is impossible.

Article 546 of the Civil Act

Plaintiff

Defendant

Seoul High Court Decision 93Na960 delivered on October 7, 1993

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

The grounds of appeal are examined.

1. As to the first point:

The theory of lawsuit agreed that the Defendant, while selling the instant store to the Plaintiff, agreed to lease the instant store to a third party a gold of KRW 20 million. The court below rejected the testimony of the non-party witness who corresponds to the above agreement on the ground that the non-party witness’s testimony is not trusted and there is no other evidence to acknowledge it, but it is unlawful for the court below to reject it. However, it is not acceptable for the court below to find the facts, which are the exclusive authority of the court below, and to find it erroneous for the evidence preparation. The argument is

2. As to the second point:

According to the reasoning of the judgment below, the court below determined to the purport that it is difficult to view that the defendant's obligation to perform was omitted merely on the ground that the reason that the use of the store of this case at the time of the cancellation of the sale contract was changed to retail stores by easily changing the purpose of use under the Building Act under Article 48 of the former Building Act and Article 99 (1) 1 of the Enforcement Decree of the same Decree, which was enforced at the time of the cancellation of the sale contract, although the plaintiff was recognized that the use of the store of this case was the depository at the time of the cancellation of the sale contract, and that the neighborhood living facilities under each subparagraph of Article 48 of the former Building Act and Article 99 (4) of the same Enforcement Decree of the same Decree, which was enforced at the time of the cancellation of the sale contract.

In light of the records and relevant regulations, the above fact finding and judgment by the court below is justified, and there is no error of law such as misunderstanding of facts or misunderstanding of legal principles pointed out by the theory of lawsuit

The issue is without merit because it criticizes the judgment of the court below on different opinions from the court below.

3. Therefore, the appeal is dismissed and all costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-ju (Presiding Justice)