(영문) 광주지방법원 2018. 2. 9. 선고 2017나55694 제1민사부 판결

2. On November 20, 2015, the Defendant shall implement the procedure for the registration of ownership transfer with respect to the real estate stated in the separate sheet to the Plaintiffs.

3. All costs of the lawsuit shall be borne by the defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. Basic facts

The reasoning for this part of the court's explanation is the same as the corresponding part of the judgment of the court of first instance, and thus, it is accepted by the main text of Article 420 of the Civil Procedure Act.

2. Determination on the cause of the claim

According to the above facts of recognition, since a sales contract for the instant real estate was concluded between the plaintiffs and the defendant, the defendant is obligated to implement the registration procedure for transfer of ownership for the instant real estate on November 20, 2015 to the plaintiffs.

3. Judgment on the defendant's defense, etc.

A. The defendant's assertion

1) First, when concluding the first purchase and sale contract on the instant real estate with the Plaintiffs, the Defendant set the payment date of the remainder on September 30, 2015, and requested that the Plaintiffs extend the payment date and request the Defendant to pay the remainder on or before November 20, 2015. However, as the Plaintiffs failed to perform their obligation to pay the remainder by the date of the remainder payment, the date of the remainder payment was finally extended on May 30, 2016 when preparing the confirmation document 2 of the real estate sales contract, and the date of the remainder payment was extended on or before May 30, 2016. However, if the Plaintiffs fail to pay the remainder by May 30, 2016, the sales contract was automatically terminated. However, the Defendant did not pay the remainder payment by no later than May 30, 2016, which was the date of the remainder payment, and the Defendant had terminated the sales contract by no later than June 10, 2016, even if it was automatically extended by June 10, 2016.

2) Second, the Plaintiffs agreed with the Defendant to bear the transfer income tax arising under the sales contract for the instant real estate. In that context, the Plaintiffs clearly expressed their intent not to bear the transfer income tax by inserting the phrase “as to the sale price” in the part of “as to the transfer price” in Article 24(4) of the Real Estate Sales Contract Certificate, and expressing their intent not to bear the transfer income tax, such as by inserting the phrase “as to the sale price,” and by expressing their intent not to pay only the transfer income tax for KRW 400 million. Accordingly, the Plaintiffs’ refusal to perform the obligation to pay the transfer income tax on the instant real estate

3) Third, as seen in the above paragraph (2), the plaintiffs inserted the phrase "as to the sale price under Section 2-4 (4) of the certificate of real estate sales contract," and added the phrase "as to the sale price under Section 2-4 (2) of the certificate of real estate sales contract," and caused the defendant, who was aware that the above certificate 2 was identical to the second draft of the certificate of the real estate sales contract issued by the original defendant, to affix the above certificate 2. Based on the above phrase, the plaintiffs asserted that only the transfer income tax for KRW 400 million is imposed on the sales price excluding service costs. The defendant entered into a sales contract by fraud or mistake

B. Determination

1) Determination on the first argument

A) Even though an agreement is made to the effect that, in the real estate sales contract, if the buyer fails to pay the price by the due date, the contract is automatically rescinded, the intention and fact of the agreement date alone cannot be deemed to have been automatically rescinded unless the seller provides performance and causes delay of the buyer. However, the buyer is obliged to perform the contract by the due date when he/she requests the postponement of the outstanding payment date and requests the postponement of the outstanding payment date.

The sales contract automatically becomes void due to the failure of the buyer to pay any balance by the due date (see, e.g., Supreme Court Decisions 2007Do5030, Dec. 27, 2007; 2010Da1456, Jul. 22, 2010).

B) Article 2-1 of the Certificate of Real Estate Sale and Purchase Contracts (2-1) provides that the Defendant is sufficiently aware of the fact that it is difficult for the Plaintiffs to implement the remaining payment date ( September 30, 2015) and the oral promise ( November 20, 2015) on the grounds of their business, and that the contents of the contract shall be extended by May 30, 2016.

C) However, the aforementioned evidence added to the purport of Gap evidence Nos. 5 and 9, Eul evidence Nos. 8 (including paper numbers), and the testimony of Eul witness of the first instance court. The plaintiffs and the defendant agreed to extend the transfer income tax on May 30, 2016, which is the date of payment of the remainder of the purchase and sale stipulated in the certificate No. 2 of real estate sales contract, to June 10, 2016. The above agreed that the plaintiffs and the defendant extended the transfer income tax to June 10, 2016, which is the date of payment of the agreed balance of the purchase and sale, before June 8, 2016, in order to solve the issue of transfer income tax, such as making evidential documents through a certified tax accountant E, a director of the plaintiff and Eul, from the next day, the remaining payment date of the purchase and sale was expressed to the defendant for more than the next day, and accordingly, the plaintiffs were paid the transfer income tax to the defendant on June 11, 2016.

As such, it is difficult to conclude that the Defendant paid KRW 710 million to the Defendant on June 22, 2016 for the remaining purchase and sale price of KRW 710 million, and that Defendant deposited KRW 710 million on July 29, 2016 on the ground that the sales contract was rescinded due to the cause attributable to the Plaintiffs. According to the above facts of recognition, prior to June 10, 2016, the date of payment of the last agreed sale price, the Plaintiffs and the Defendant agreed on the specific amount of capital gains tax, the form, method, and timing of providing the payment of capital gains tax, and how the Plaintiffs and the Defendant did not reach the final agreement, but the Defendant expressed its intent to receive the remaining purchase and sale price after determining capital gains tax issues rather than denying the issue of capital gains tax itself, and the Defendant’s assertion that the Plaintiffs faithfully responded to the request of the Defendant until June 16, 2016, on the premise that the payment was made by June 16, 2016.

2) Judgment on the second argument

A) Where an obligor clearly expresses his/her intent not to perform a contract, the obligee may cancel the contract, or claim damages against the obligor without the obligor’s demand for refusal of performance, even before the due date is due under the principle of good faith. Whether the obligor clearly expresses his/her intent not to perform the contract should be determined by examining the parties’ behavior and specific circumstances before and after the contract (see, e.g., Supreme Court Decisions 93Da11821, Jun. 25, 1993; 2004Da53173, Aug. 19, 2005).

B) The following circumstances acknowledged based on the facts and evidence as seen earlier

In light of the circumstances and evidence alleged by the Defendant, it is insufficient to recognize that the Plaintiffs clearly expressed in advance the intent not to perform the obligation to pay capital gains tax, and there is no evidence to acknowledge otherwise. Therefore, the Defendant’s assertion on this part is without merit.

① On March 24, 2015, a sales contract for the instant real estate concluded between the Plaintiffs and the Defendant states that the purchase price shall be KRW 400 million and the remaining payment shall be made in addition to KRW 500 million at the time of the remainder payment. On April 7, 2015, the confirmation of a real estate sales contract for the real estate on April 7, 2015 states that the Plaintiffs shall pay capital gains tax of KRW 400 million and the service cost shall be KRW 500 million, and that the Plaintiffs shall pay taxes regardless of the reasons for the occurrence of additional taxes on the real estate sales price and the service cost. The confirmation of a real estate sales contract for the real estate that was made between the Plaintiffs and the Defendant stated that the Plaintiffs shall have a right to refuse the delivery of the instant real estate and a right to retention in the confirmation of a real estate sales contract for the said real estate. In light of the above sales contract and the entries in the confirmation of each real estate sales contract for the said real estate sales price, the Plaintiffs and the Defendant shall additionally bear an obligation to pay capital gains tax or additional taxes until the following imposition.

② However, prior to or after June 10, 2016, the payment date for the remainder of the sale price, there was no agreement between the Plaintiffs and the Defendant on the form, method, timing, etc. of providing a performance to bear the transfer income tax, as seen earlier. Therefore, the aforementioned agreement was ultimately made.

As such, the Plaintiffs shall bear the capital gains tax and the tax additionally imposed on the purchase price, and the Defendant shall hold an obligatory right to refuse to transfer the instant real estate until the obligation to perform the said obligation is fully determined after the implementation of the registration procedure with respect to the instant real estate. Therefore, the Plaintiffs’ obligation to bear capital gains tax cannot be deemed as having a concurrent performance relationship with the Defendant’s obligation to transfer ownership, and the Plaintiffs’ declaration of intent to bear capital gains tax on the purchase price of KRW 400 million cannot be deemed as having explicitly expressed the intent not to bear capital gains tax or the tax additionally imposed.

(3) In addition, the plaintiffs asserted that the defendant has a duty to cooperate with the plaintiffs to deliver documentary evidence for necessary expenses for the determination of capital gains tax and that the above duty to cooperate is prior to or at least simultaneous implementation relationship with the plaintiffs' obligation to bear capital gains tax. The above plaintiffs' assertion is different from the defendant, and it is difficult to deem that the plaintiffs clearly expressed their intent not to bear capital gains tax by asserting that the interpretation of the specific form and method for performing the obligation to bear capital gains tax is different from the defendant (the defendant has the right to claim against the plaintiffs to refuse to transfer the real estate of this case until the plaintiffs fulfilled the obligation to pay capital gains tax or additional tax (

④ The fact that the Defendant stated that “the transfer price of real estate sold shall be implemented as promised in the certificate of real estate sales contract” as stipulated in subparagraph 2(d) of the second draft of the certificate of real estate sales contract sent by the Defendant e-mail to the Plaintiffs is insufficient to deem that the Plaintiffs modified the phrase “as to the sale price” under Article 24(1) of the certificate of real estate sales contract by inserting the phrase “as to the sale price,” and there is no evidence to acknowledge otherwise.

3) Determination on the third argument

As seen earlier, the plaintiffs cannot be deemed to have changed the phrase "as to the sale price" in the certificate 24 of the real estate sales contract for the plaintiffs, by inserting the phrase "as to the sale price" into the defendant's future. Therefore, this part of the defendant's assertion on another premise is without merit without further review.

4. Conclusion

Therefore, the plaintiffs' claim of this case should be accepted on the grounds of its reasoning. Since the judgment of the court of first instance that differs from this conclusion is unfair, it is so decided as per Disposition by the assent of all participating Justices to cancel this and order the implementation of the procedure for ownership transfer registration of this