[1] Requirements for recognizing implied rescission of a contract

[2] The case where an implied rescission of a settlement agreement is recognized

[1] In order to cancel a contract, the requirement is that the opposite expression of intent between the parties to the contract and the acceptance of the contract should be agreed as well as the express case. However, since the rescission of the contract can be made implicitly and implicitly, if the lack or renunciation of the parties to the contract is objectively consistent with the intent expressed by both parties to the contract, it is reasonable to interpret that the contract was cancelled implicitly by the agreement between the parties to the contract not to realize the contract.

[2] The case holding that Gap and Eul filed a lawsuit that is incompatible with the settlement contract, on the ground that Eul did not complete the registration of ownership transfer on the basis of the documents and did not complete the registration of ownership transfer in spite of Eul's receipt of the registration right and the certificate of seal impression necessary for the execution of the settlement contract, and Eul notified Eul that all the previous agreements with Gap should be withdrawn, and if the appellate court recommended Eul to resolve the case in accordance with the previous settlement agreement but both of them were not complied with, they shall be deemed to have been rescinded by an implied agreement between both parties.

[1] Article 543 of the Civil Code / [2] Article 543 of the Civil Code

[1] Supreme Court Decision 92Da4130, 4147 decided Jun. 23, 1992 (Gong1992, 2252) Supreme Court Decision 93Da28836 decided Aug. 26, 1994 (Gong1994Ha, 2512) Supreme Court Decision 94Da17093 decided Sept. 13, 1994 (Gong194Ha, 2640)

1. The case where the court below's decision is delivered to the court below for the first time.

Defendant 1 and one other (Attorney Park Sang-hoon, Counsel for the defendant-appellant)

Seoul High Court Decision 97Na12787 delivered on August 13, 1997

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

The court below determined that the above agreement was non-party 1 and the non-party 2's original land of this case and the non-party 3's land of this case. The above agreement was non-party 1 and the non-party 2's co-owned land. The above land was registered for preservation of ownership under the Act on Special Measures for the Transfer of Real Estate Ownership on November 2, 1984. The above land was owned by the plaintiff who was entrusted to the above clan, and the defendants argued that the above land was owned by the non-party 3's clan. The plaintiff and the defendants asserted that the above land was non-party 1 and the above non-party 3's land were non-party 3's land to be non-party 9's land, and that the above agreement was non-party 3's land to be non-party 1's land and the above non-party 2's land was non-party 9's land ownership transfer registration for the same reason that the plaintiff did not comply with the above agreement. The court below's decision that the plaintiff's land transfer registration of this case was non-party 2.

A contract termination or termination is a new contract, regardless of whether the contract has a right of rescission or not, which provides that both parties to the contract shall terminate the validity of the existing contract by agreement and return it to the same state as that in which the contract had not been concluded originally. In order to cancel the contract, the contract is generally established, as in the case of the case of a contract, the opposite expression of intent, which is the offer and acceptance of the contract, shall be consistent (see, e.g., Supreme Court Decisions 92Da4130, 4147, Jun. 23, 1992; 93Da28836, Aug. 26, 1994; 94Da17093, Sept. 13, 1994). Thus, the rescission of the contract can be made implicitly as well as explicitly, so if the lack or waiver of both parties' intent to realize the contract conforms objectively to the contents expressed by both parties, it is reasonable to interpret that the contract to be terminated as agreed upon.

According to the facts established by the court below, the plaintiff and the defendant merely expressed their intent not to realize the previous settlement agreement, and they merely concluded a settlement agreement to determine the land of two parcels and other two parcels as owned by the defendants. The plaintiff filed a lawsuit that is incompatible with the above settlement agreement on the ground that the plaintiff did not complete the registration of rights and certificates of seal necessary for the implementation of the settlement agreement without completing the registration of ownership transfer by the defendants. The defendants notified the plaintiff that all of the previous settlement agreement should be withdrawn, and if the appellate court recommended the plaintiff to resolve the case in accordance with the previous settlement agreement but all of the parties agreed to do so, the plaintiff and the defendant expressed their intention not to realize the previous settlement agreement, and therefore, the above settlement agreement of this case can be seen to have been rescinded at least by implied agreement of both parties, while the plaintiff submitted the above settlement agreement in the previous lawsuit, which cannot be seen to have been rejected by the court of final appeal, as long as the plaintiff did not have any intent to maintain the previous settlement agreement, but it cannot be seen to have been in accordance with the previous settlement agreement.

Nevertheless, the court below rejected the defendants' assertion that the contract of this case was rescinded by agreement only for the reasons as stated in the judgment of the court below. Thus, the court below erred in the misapprehension of legal principles as to the rescission of agreement of a compromise contract, and such illegality affected the judgment. Thus, the appeal pointing this out has merit.

Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices

Justices Final Young-young (Presiding Justice)