2016Da279237 Compensation, etc.

A

B

Daegu District Court Decision 2015Na310344 Decided December 14, 2016

April 27, 2017

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Daegu District Court Panel Division.

The grounds of appeal are examined.

1. Where the other party expresses his/her intention not to perform in advance in relation to the assertion of cancellation of a contract, such as misapprehension of the legal principle as to the cancellation of a contract, and in case of the cancellation of a contract due to the so-called "non-performance", the requirements for the cancellation of contract are mitigated in comparison with the cancellation of the contract at the time of delay of performance (see Supreme Court Decision 92Da9463, Sept. 14, 1992). In order to recognize implied intention of refusal of performance by taking into account all the circumstances at the time of the contract or thereafter, in addition to cases where the intention of refusal of performance is explicitly expressed, the intention of refusal should be clearly acknowledged in light of the circumstances (see, e.g., Supreme Court Decision 2004Da22971, Nov. 9, 206).

According to the reasoning of the lower judgment and the record, the Plaintiff purchased the instant apartment from the Defendant on October 2, 2014, and entered into a contract, and the down payment was paid at the time of the contract, and the remainder was paid on December 2, 2014, and the lessee entered into a special contract to extend the remainder date for one month when the lessee seeking a house (hereinafter “instant sales contract”); and the Plaintiff paid the down payment of KRW 25 million according to the instant sales contract; and the lessee sent KRW 20 million to the Defendant’s passbook on the same day as the lessee would be a director on January 7, 2015; on the same day, the Defendant sent KRW 20 million to the Defendant’s passbook; however, on January 6, 2015, the Defendant sent the text message that the instant sales contract was rescinded on the grounds that the remainder was not paid by January 2, 2015, which was the due date extended to the Plaintiff on January 6, 2015.

Examining these facts in light of the legal principles as seen earlier, it is difficult to readily conclude that the Plaintiff clearly expressed his/her intent to refuse performance solely on the grounds that the Plaintiff did not pay any balance by January 2, 2015. Therefore, the Defendant cannot lawfully rescind the instant sales contract without providing the principal’s obligation.

Although the lower court did not explicitly determine whether the Plaintiff expressed its intent to refuse to pay the remainder, it concluded that the cancellation of the instant sales contract on January 6, 2015, when the Defendant did not provide the Plaintiff with the obligation to pay the remainder and the obligation to pay the remainder, it is unlawful to conclude that the cancellation of the instant sales contract on January 6, 2015. In so doing, it is justifiable in its conclusion, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine

2. On the grounds stated in its reasoning, the lower court, on the grounds of its stated reasoning, cannot be deemed as having provided the Defendant with the obligation to pay the remainder of the Plaintiff’s payment and the obligation to transfer the ownership of the instant apartment, and thus, cannot be deemed as having provided the Defendant with the obligation to deliver and transfer the ownership of the instant apartment, which is concurrently performing the Plaintiff’s obligation to pay the remainder of payment, and even thereafter, the Defendant continued to refuse to pay the remainder

In light of the fact that the apartment of this case was disposed of to a third party on October 6, 2015, the Defendant’s cancellation as of January 29, 2015 is also illegal. Rather, due to the Defendant’s refusal of performance, the instant sales contract was lawfully rescinded by the delivery of a copy of the instant complaint indicating the Plaintiff’s intention of rescission, and the Defendant was liable to pay the Plaintiff interest and delay damages from May 4, 2015 to the date following the delivery of the copy of the instant complaint as of January 7, 2015 (i.e., KRW 25 million (i., KRW 25 million and KRW 20 million) and compensation for damages (i.e., KRW 75 million) and KRW 45 million, whichever are the last payment date.

However, according to the records, the defendant's attorney, through the statement in the preparatory brief dated May 23, 2016 from the date of the second pleading of the court below, submitted a certificate of transaction confirmation (Evidence B) with a documentary evidence stating that "as the defendant unilaterally transferred from the plaintiff to the account designated by the plaintiff's attorney on May 13, 2016 during the appellate trial, he/she shall deduct the above money from the amount of damages," and the plaintiff's attorney also received KRW 20 million from the defendant on the date of the second pleading of the court below.

Nevertheless, the lower court did not render any judgment on the Defendant’s assertion of deduction. In so doing, the lower court erred by omitting judgment on the facts alleged by the parties, thereby adversely affecting the conclusion of the judgment. The ground of appeal assigning this error is with merit.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cho Jae-won

Justices Kim Chang-tae, Counsel for the defendant

Justices Park Sang-ok