[1] The meaning of "the time when the construction of the first floor framed was completed in the construction of the new reinforced concrete building"

[2] In a case where the payment date of intermediate payments pursuant to the sales contract of a newly constructed building is determined as the “when the construction of the first floor is completed,” whether the obligation to pay the intermediate payment is determined as the due date (affirmative)

[1] Articles 105 and 664 of the Civil Act / [2] Article 152 of the Civil Act

00. White Pumm (Attorney Credit Card, Counsel for the defendant-appellant)

Kim Man-su

Seoul High Court Decision 2004Na63325 decided June 9, 2005

The part of the judgment below ordering the return of down payment and the provisional payment shall be reversed, and this part of the case shall be remanded to the Seoul High Court. The remaining appeals shall be dismissed.

We examine the grounds of appeal.

1. The measure of the court below

According to the reasoning of the judgment below, the plaintiff's 10th 2th 2th 1st 2th 2th 1st 2th 1st 2th 2th 2th 2th 1st 2th 2th 2th 1st 2th 2th 2th 1st 2th 2th 2th 1st 2th 2th 1st 2th 2th 1st 2th 2th 1st 2th 1st 2th 1st 2th 2th 2th 1st 2th 1st 2th 2th 2th 1st 2th 1st 2th 2th 1st 2th 1st 2th 2th 1st 1st 2th 1st 2th 2nd 1st 3th 1st 3th 2th 2nd 1st 2th 1st 2th 2nd 3th 3th 2nd 10th 2th 3th 3th 2th 2nd 3th 22nd 3.

2. Judgment of the Supreme Court

A. As to the claim for refund of down payment

However, it is difficult to accept this part of the judgment below.

As seen earlier, the lower court deemed “the time when the construction of the first floor was completed” which was agreed upon as the date of the payment of intermediate payments for the sales contract in this case as the date of completion of concrete removal of the first floor roof, and determined as before December 15, 2001, which was entered into the slive work of the second floor, the lower court should be the premise that the lower court’s aforementioned determination should first be based on the fact that the slive work of the first floor and the slive work of the second floor is the separate process, and that the slive work of the second floor can begin only after the completion of the slive work of the second floor’s roof of the second floor (the 1 to 9th unit of evidence No. 5, the 51 to 59th unit), the 1st floor of the construction site (the 5th unit of evidence No. 5-10, the 60th floor), the 1st floor and the 2nd floor of the construction of the second floor should be separated from the 1st floor.

In addition, the intermediate payment payment date of this case is called the "the time when the intermediate payment is completed" and therefore, in order to ensure that the intermediate payment payment date of this case has arrived, all the 1st floor be completed and then the scheduled construction can begin at any time at the next stage. In order to start the next stage of the new construction of reinforced concrete building, such as this case, it is reasonable to view that the concrete type of concrete is ordinarily necessary to start the new construction of reinforced concrete building, so it is reasonable to view that the new construction of the first floor and the second floor should expire even after the completion of the concrete building construction for building the second floor and the normal life period.

In addition, in cases where the repayment period is the due date, there is a delay liability from the due date when the repayment period has arrived, but in cases where the due date is the due date, there is a delay liability from the time when the debtor becomes aware that the due date has arrived, and the time for the payment of the intermediate payment in this case is not determined at the time when the due date for the payment of the intermediate payment has not yet arrived in the future, i.e., when the due date for the payment of the intermediate payment has not been determined by the due date. Therefore, in order to assume the responsibility for delay of the payment of the intermediate payment, it is insufficient to say that the construction of the first floor frame

Furthermore, according to Article 8 of the sales contract of this case, when the plaintiff delayed payment for 15 days or more from the designated date for the payment of the sales price, the defendant can unilaterally cancel the sales contract without due process such as peremptory notice. However, in light of the above legal principles, if the defendant becomes aware of the completion of the construction of the first floor foundation in order to cancel the contract of this case pursuant to the above provision, or if the defendant designated the date for the payment of the intermediate payment to the plaintiff after the completion of the contract of this case, there is a cause for delay of the payment of the intermediate payment for 15 days or more from the designated date for the payment.

Therefore, in this case, in order to hold the Plaintiff liable for part payments, the sales contract in this case can be cancelled without a peremptory notice, as provided in the sales contract, only when the Defendant did not pay part payments for 15 days or more from the designated payment date, if the Plaintiff knew that the part payments were to be made after the completion of the construction of the new construction of this case, the first floor and the second floor concrete lives construction of the second floor of the new construction of this case was completed, and the period of designation of the Plaintiff after the completion of the construction of the concrete lives construction of the concrete lives, and the date of completion of the construction after the completion of the construction of the concrete lives construction after the completion of the construction of the new construction of this case or the date of the Plaintiff’s completion of the construction of the first floor lives construction of the new construction of this case after the completion of the construction of the construction of this case or after the completion of the construction of the construction of the construction of the construction of this case after the completion of the contract.

According to the court below's decision, since it is evident that the notice of payment of intermediate payment made by the defendant by telephone was made before the completion of the 15th floor of this case, which is prior to the expiration of the due date, and thus, it cannot be deemed a legitimate request for performance. Further, on December 19, 2001, the defendant sent a reminder to demand the plaintiff to pay intermediate payment by December 26, 2001, when the 15th floor of this new building and the 2nd floor of this second floor of this case were completed. Even if the payment is made after the expiration of the ordinary life period after the removal of concrete from the 15th floor of this new building, the defendant can cancel the contract without a peremptory notice from January 10, 202, since the cancellation notice as of January 5, 2002 does not meet the requirements for cancellation of contract.

Nevertheless, on December 14, 2001, which was found to be a separate process from the first floor slve work and the second floor slve work, the court below held that the period during which payment of intermediate payment has arrived after the completion of the first floor slve work and the payment of intermediate payment has been fixed at the end of December 14, 2001, which was the preceding day before the commencement of the second floor slve work, and interpreted that the defendant can unilaterally cancel the contract of this case without due process, such as the last day of December 29, 2001, in case where the plaintiff did not pay intermediate payment and interest thereon until December 29, 201, which became 15 days from the time of the completion of the intermediate payment payment, the court below rejected the plaintiff's claim for the payment of intermediate payment, and further, it did not err in the misapprehension of legal principles as to the cancellation of contract or the cancellation of contract by misunderstanding the facts against the rules of evidence.

B. As to the claim for penalty payment

Even if the sales contract of this case was cancelled due to the reasons attributable to the defendant, there is no ground for seeking the payment of penalty against the defendant on the record, and if the contract is cancelled due to the reasons attributable to the plaintiff on the sales contract, there is a provision that the plaintiff's contract deposit belongs to the defendant, and on the contrary, the defendant shall not be deemed to pay the plaintiff a penalty equivalent to the contract deposit. Thus, the judgment of the court below which rejected the plaintiff's claim on the premise that the sales contract of this case was cancelled due to the reasons attributable to the plaintiff is insufficient in its reasoning, but the conclusion that rejected the plaintiff's claim is legitimate, which affected the conclusion of the judgment.

3. Conclusion

Therefore, the part of the judgment of the court below concerning the claim for the return of the down payment and the part ordering the plaintiff to return the provisional payment shall be reversed, and this part of the case shall be remanded to the court below for a new trial and determination. The remaining grounds of appeal are dismissed as it is without merit, and it is so decided as per Disposition by the assent of all participating Justices

Justices Lee Hong-hoon (Presiding Justice)