[1] In a case where a buyer’s failure to pay part payments, which is a prior performance obligation, and the due date for the payment of the remainder payment without the seller’s transfer of ownership, is the overdue liability for the buyer’s failure to pay part payments (negative)

[2] The case holding that it is difficult to view the buyer's obligation to pay part payments as an agreement with a prior performance relationship at all times than the seller's obligation to provide documents required for transfer of ownership

[1] Even if the buyer did not pay the intermediate payment which is already obligated to perform, if the date of payment of the intermediate payment and the remainder of the intermediate payment arrives before the date of payment of the intermediate payment and the seller’s transfer registration required documents for ownership transfer registration at the same time with the remainder payment have been provided, barring any special circumstances, the buyer’s payment of the intermediate payment and the remainder payment and the seller’s provision of documents required for transfer registration of ownership are in a simultaneous performance relationship, barring any other special circumstances. Thus, the buyer is not liable for delay in payment of the intermediate payment from that time.

[2] The case holding that it is difficult to view the buyer's obligation to pay part payments as an agreement with a prior performance relationship at all times than the seller's obligation to provide documents required for transfer of ownership

[1] Articles 536 and 568 of the Civil Act / [2] Articles 536 and 568 of the Civil Act

[1] Supreme Court Decision 80Da268 delivered on April 22, 1980 (Gong1980, 1288), Supreme Court Decision 87Da1029 delivered on September 27, 198 (Gong1988, 1328), Supreme Court Decision 90Da19930 Delivered on March 27, 1991 (Gong1991, 1271), Supreme Court Decision 91Da43107 delivered on April 14, 1992 (Gong192, 1582), Supreme Court Decision 97Da54604, 5461 delivered on March 13, 198 (Gong198, 1042), Supreme Court Decision 207Da1971979 delivered on July 13, 199 (Gong198, 1042), Supreme Court Decision 2005Da197479 delivered on July 197, 1997

Plaintiff (Attorney Kim-Hy et al., Counsel for plaintiff-appellee)

Defendant (Law Firm New Daegu General Law Office, Attorneys Lee Dong-sung et al., Counsel for defendant-appellant)

Daegu District Court Decision 98Na609 delivered on December 1, 1999

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

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below rejected the defendant's obligation to cancel the sale contract and the intermediate payment on October 2, 1996 and the part of 250 million won out of 474 square meters (hereinafter "the land of this case") that the defendant did not pay the above intermediate payment to the defendant for the reasons that the part of this case was not discharged on 1996, and the part of the intermediate payment was not discharged on 97,000 won on the date of the contract, and the part of the intermediate payment was not discharged on 97,00 won for the reason that the part of this case was not discharged on 197,000 won for the remaining 9,000 won for the reason that the part of the intermediate payment was not discharged on 97,000 won for the remaining 9,000 won for the reason that the part of this case was not discharged on 19,000 won on 19,000 won for the remaining part of the land.

2. Regarding ground of appeal No. 1

Even if the buyer did not pay the intermediate payment under the obligation to pay the intermediate payment, if the date required for the registration of transfer of ownership of a seller who has the obligation to pay the intermediate payment and the remainder payment arrives at the date of the payment of the intermediate payment and without the payment of the remainder payment until the date of the payment, barring any special circumstances, the buyer’s payment of the intermediate payment and the payment of the remainder and the provision of documents required for the registration of transfer of ownership of the seller are in a simultaneous performance relationship. Thus, the buyer is not liable for the delay of payment for the failure to pay the intermediate payment at the same time (see, e.g., Supreme Court Decisions 80Da268, Apr. 22, 1980; 87Da1029, Sept. 27, 198; 90Da1930, Mar. 27, 191; 91Da43107, Apr. 14, 1992; 197Da16374, Apr. 16, 197, 197

According to the records, the plaintiff and the defendant agreed on February 28, 1997 on the payment date of the balance under the above sales contract and at the same time there is a special agreement that "the balance will be paid at a bank in the name of the country after the completion of construction." On the other hand, the plaintiff and the defendant are aware that if the sales contract was concluded on October 22, 1996 at the end of that year, it would be possible to complete the land readjustment project and transfer of ownership in the name of the defendant, and if it would be possible at the latest, it would not interfere with the transfer of the plaintiff's future owner's name, on the premise that it is difficult for the plaintiff to pay the balance as a bank loan with the real estate of this case, and there is no special understanding among the parties as to the payment date of the balance, and at the same time there is no obligation to pay the balance from the financial institution to pay the part payment to the defendant under the special agreement.

Therefore, even if the plaintiff, who is the buyer, did not perform the obligation to pay the intermediate payment under the prior obligation, the remaining payment date arrives without the payment of the intermediate payment and the remaining payment without the payment of the intermediate payment until the expiration of the contract, and the date of the contract is excessive. In this case, the above special contract is not recognized as an agreement that is at all times prior to the provision of the documents required for the registration of transfer of ownership, and the payment of the intermediate payment and the payment of the remainder and the provision of the documents required for the registration of transfer of ownership are still in a simultaneous performance relationship. Therefore, the cancellation of the contract by the defendant is illegal because it is made without the delayed payment of the plaintiff's obligation to pay the intermediate payment which was in a simultaneous performance relationship at the time of the fulfillment of the obligation to provide the documents required for the registration of transfer of ownership, and the decision of the court below and the decision of the court below that the above sales contract was legally cancelled due to the defendant's fault, and there is no error of misunderstanding of legal principles as to the rescission of the contract or misunderstanding of facts as asserted in the grounds for appeal.

3. Regarding ground of appeal No. 2

Although the court below erred in the misapprehension of the principle of pleading by recognizing the fact that the plaintiff had cancelled the above sales contract due to an obvious declaration of non-performance refusal among the defendant's delay of performance, as seen earlier, the court below also recognized the fact that the plaintiff cancelled the above sales contract on the grounds of non-performance impossibility due to the defendant's fault, and as long as it is acceptable to accept such a judgment, the above error of the court below did not affect the conclusion of the judgment. Therefore, the ground of appeal on this part

4. 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 Lee Jae-in (Presiding Justice)