Whether the other party's ability or intent to perform the contract shall be notified to cancel the contract even if the other party has no capacity or intent;

Even though the first grace period of the buyer's remaining payment date was the first grace period, if the buyer transferred the ownership of the real estate, which is the object of the sale, to the seller, the buyer would obtain a loan from the bank as a security and pay the remaining amount, it can be judged that the seller has no ability or intent to execute the contract.

Article 544 of the Civil Act

62Da684 delivered on March 7, 1963 (Supreme Court Decision 7512 delivered on July 7, 1963, Supreme Court Decision 11Nu civil181 delivered on July 7, 196, Supreme Court Decision 544(11)47 of the Civil Act)

Plaintiff Company

Defendant

Yeongdeungpo-gu Seoul Central Criminal Court (74Gahap301) in the first instance trial.

The plaintiff's appeal is dismissed.

Expenses for appeal shall be borne by the plaintiff.

The original judgment is revoked. The defendant shall pay to the plaintiff the amount of KRW 6,00,000 and the amount at the rate of five percent per annum from the next day of service to the next day of full payment. The costs of the lawsuit shall be borne by the defendant in both the first and second instances. The above payment of the amount may be provisionally executed.

1. On February 22, 1973, the Plaintiff shall make a sales contract for the real estate listed in the separate sheet (hereinafter in this case’s real estate) owned by the Defendant at KRW 37,000,000 on the day, and the remaining amount shall be paid at KRW 34,00,000 on the day, and the deposit shall be paid at KRW 34,00,000 on March 22, 197, in exchange with the documents necessary for the registration of ownership transfer, and the deposit shall be paid at KRW 21,00,000,000 already borne by the Defendant against the lessee of this real estate at the request of the lessee, and be treated under the presence of the Defendant, and the Defendant shall cancel the registration for this real estate (land portion) prior to the payment of the remaining amount, and since this real estate portion is unregistered, this agreement shall be made before the Defendant’s establishment of preservation and removal of the building on the day, and if the Defendant violates the terms and conditions of the contract, the contract shall be invalidated by the Plaintiff.

2. The plaintiff's remaining payment date of the non-party 1 and the non-party 2's statement that the non-party 1 and the non-party 2's non-party 3's agent's remaining payment date for the non-party 1 and the non-party 2's agent's non-party 3's non-party 2's non-party 2's non-party 3's non-party 1's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 3's non-party 2's non-party 2's non-party 2's non-party 3's non-party 2's non-party 3's non-party 1's non-party 2's non-party 3's non-party 1's non-party 3's non-party 2's non-party 3's non-party 1's non-party 3's non-party 3's non-party 2's non-party 2's.

When all of the above facts acknowledged, the defendant's obligation to perform the conditions prior to the plaintiff's assertion was already fulfilled or terminated by agreement between the plaintiff and the plaintiff, so no other circumstance exists to deem that the defendant violated the contract. Rather, the defendant notified the plaintiff of the cancellation of the contract because the plaintiff failed to perform the duty to pay the remaining amount by the agreed date, and the contract was lawfully rescinded.

The plaintiff asserts that the contract termination is not lawfully made by the defendant. Thus, the peremptory notice of performance, which is a requirement for contract rescission, does not need to be specific in the case where the contract execution is impossible or the other party has expressed his intention to refuse contract execution in advance. In this case, even though the defendant allowed the plaintiff to refuse to pay the remainder on the date of the contract, and again violated the first grace period as required by the plaintiff, the plaintiff again violated the contract, so if the plaintiff would transfer the ownership to the defendant, the plaintiff would receive the loan from the bank as collateral and pay the remainder. Thus, it can be judged that the plaintiff did not have the ability or intent to perform the contract in social norms. Thus, the defendant's peremptory notice of performance, which is a requirement for contract rescission, is unnecessary because it is not possible to give the plaintiff a peremptory notice of performance with a reasonable period of time, and even if not, the contract cancellation clause becomes null and void due to the plaintiff's breach of contract cancellation clause as above.

3. Ultimately, the plaintiff's claim for reimbursement of the down payment against the defendant on the ground of the breach of contract or the default of contract shall be dismissed as it does not have to be judged any further, without any further reason. The plaintiff's appeal is justified and without merit, and the costs of the lawsuit shall be borne by the losing party and it is so decided as per Disposition.

Judges Kim Hong (Presiding Judge)