In returning money received by one of the parties due to the cancellation of a contract, the legal nature of interest under Article 548(2) of the Civil Act that should be paid in addition to the date of receipt (i.e., return of unjust enrichment), and whether the seller is in a simultaneous performance relationship, regardless of whether the obligation to return the purchase price and to cancel the registration of ownership at the time of cancellation of a real estate sales contract

It is stipulated in Article 548(2) of the Civil Act that requires the addition of statutory interest from the time when one of the parties receives the money in return for the said money. This is within the scope of restitution, and it does not result from the delay of the duty to return the money. In the event that the real estate sales contract is terminated, regardless of whether the seller has the duty to return the purchase price and the duty to register the buyer’s transfer of ownership registration, the seller shall pay the purchase price to be returned in addition to the statutory interest at the rate of 5% per annum, which is the legal interest rate stipulated in the Civil Act, from the date of receipt, regardless of whether the seller has the duty to return the purchase price and the duty to register the buyer’s transfer of ownership

Articles 536 and 548(2) of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff 1 and one other (Attorney Lee Yong-soo, Counsel for the plaintiff-appellant)

Defendant

Daejeon High Court Decision 99Na2346 delivered on January 13, 2000

Of the judgment of the court below, the part on the claim for the amount of 47,50,000 won from October 30, 1997 to the delivery date of a copy of the complaint shall be 5 percent per annum; and the part on the claim for the amount of 25 percent per annum from the next day to the full payment date shall be reversed, and this part of the case shall be remanded to the Daejeon High Court.

We examine the grounds of appeal.

The court below held that the real estate sales contract between the plaintiffs and the defendant was lawfully rescinded by the exercise of the plaintiffs' right to rescind the contract, and rejected the plaintiffs' claim for this part of this case on the ground that the plaintiffs' obligation to cancel the registration of ownership transfer concerning the real estate of this case, which was made by the execution of the contract of this case, can be refused to refund the purchase price until the plaintiffs performed the obligation, and therefore, the plaintiffs' obligation to refund the purchase price of this case can not be viewed as being responsible for delay in performance because the plaintiffs' obligation to refund the original purchase price of this case can be rejected until the above obligation is performed.

However, in the exercise of the right of statutory rescission, it is required to add legal interest from the time when one of the parties received the money in return for the said money, which falls under the scope of restitution and has the nature of restitution of unjust enrichment, and it does not result from the delay in the performance of the right of restitution. Thus, when the real estate sales contract is terminated, regardless of whether the seller's obligation to return the purchase price and the buyer's obligation to register the cancellation of ownership transfer registration is concurrently performed or not, the seller shall pay the purchase price at a rate of five percent per annum, which is the legal interest rate stipulated in the Civil Act, from the date of receipt of the contract (see, e.g., Supreme Court Decisions 94Da4728, Mar. 24, 1995; 95Da28892, Apr. 12, 1996). Such a legal principle does not change even when the seller exercises the right of rescission.

However, according to the records, it is unclear whether the plaintiffs sought legal interest on the purchase price due to the cancellation of the real estate sales contract of this case or seek damages for delay due to delay in the refund of the purchase price of this case. If so, the court below should have determined this part of the claim after exercising the right of explanation against the plaintiffs and clarifying the purport of the plaintiffs' claim on the nature of the money for which they seek payment in this part. However, the court below did not take such measures and determined this part of the claim as mentioned above, and did not err in the misapprehension of the legal principles on the scope of duty of restoration at the time of termination of the contract. The court below did not err in the misapprehension of the legal principles as to the scope of duty of restoration of the real estate sales contract of this case, and did not affect the conclusion of the judgment. The ground of appeal pointing this out has merit.

Therefore, among the judgment of the court below, the part on the claim for payment of the purchase price of this case with 5% per annum from October 30, 1997 to the delivery date of a copy of the complaint, and 25% per annum from the next full payment date shall be reversed, and the corresponding part shall be remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Yong-hun (Presiding Justice)