A. Purport that Article 565 of the Civil Act limits the time of exercise of the right of rescission to the time when one of the parties commences the performance, and whether the performance can be commenced before the due date, even though there is an agreement on the due date (affirmative with qualification)

B. In a case where the seller expresses his/her intention of cancelling the contract in accordance with Article 565 of the Civil Code, demands the receipt of the cancellation money by the specified deadline, and notifies the buyer to deposit the termination money in excess of the specified deadline, whether the buyer may commence the performance before the due date is due to the extinction of the seller

(c) In a case where a seller’s offer of cancellation money for the cancellation of a contract is lawful pursuant to Article 565 of the Civil Act, whether the contract is rescinded if the seller makes a lawful offer within the period of holding the right of rescission (affirmative), and at the time it is deemed that the seller has expressed his/her intent to cancel the contract in a case where the seller deposits a double of the contract deposit

A. Article 565 of the Civil Act limits the time of the exercise of the right to rescission to the time when one of the parties commences the performance of the right to rescission until the time when one of the parties has already commenced the performance of the right to rescission, and the parties are expected to incur unexpected damages if the contract is rescinded from the other party at this stage, and thus, it is intended to prevent it, and even if there is an agreement for the performance of the right to rescission, the performance can be commenced before the due date unless there are special circumstances, such as a special agreement under which the parties will not commence the performance before the due date.

B. As long as the seller expresses his/her intention to cancel the contract pursuant to Article 565 of the Civil Act, demands the receipt of the cancellation money by the specified time limit, and notifies the seller that he/she will deposit the contract in excess of the specified time limit, it is reasonable to view that there exists a benefit of time even on behalf of the seller. Therefore, in such cases, it is reasonable to deem that the buyer cannot perform the contract against the seller’s will because the buyer falls under special circumstances where the buyer is unable to commence performance before the due date is due, and even if the buyer unilaterally commences the performance before the due date is due, it does not affect

C. In a case where the seller wishes to cancel the contract under Article 565 of the Civil Code, he shall provide a double amount of the down payment, but if the offer of the down payment is not lawful, the contract will be cancelled at the time of lawful provision within the period of the right of rescission. In addition, in a case where the seller deposits the double amount of the down payment to cancel the contract, it shall be deemed that the cause of the deposit includes the intention of cancelling the contract. Therefore, it is reasonable to view that the other party has expressed his intention of cancelling

Article 565 of the Civil Act

Attorney Lee Jae-chul et al., Counsel for the plaintiff-appellant-appellee and two others

[Defendant-Appellee] Korea Land Development Corporation and 1 other Counsel for defendant-appellee

Seoul High Court Decision 91Na48500 delivered on June 16, 1992

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to the Seoul High Court.

Each of the grounds of appeal by Defendant Attorney are also examined.

With regard to the assertion that the termination of contract pursuant to Article 565 of the Civil Code is valid

1. According to the reasoning of the judgment below, the court below

A. On June 22, 1990, the Plaintiffs and the Defendant concluded a contract to sell the instant land owned by the Defendant to the Plaintiffs for KRW 3,434,639,00,000 on the same day, the Defendant agreed to receive KRW 350,000 as down payment from the Plaintiffs on the same day, and to receive KRW 1,367,329,00 as part payment on July 22 of the same year, and KRW 1,717,310,00 as the remainder on August 22 of the same year, and further, the Defendant agreed to receive KRW 1,717,310,00 as down payment.

B. From July 9, 190 to the 12th of the same month, the defendant declared that the non-party 1, who is a director of the plaintiff company, would refund the amount of the down payment to the non-party 1, the director of the plaintiff company, and the contract of this case was cancelled on July 13, 199, because the non-party 1 clearly expressed his intention to refuse to receive the down payment, the above contract was cancelled by expressing his intention to cancel the above down payment pursuant to Article 565 of the Civil Act. Even though the non-party 1 did not clearly express his intention to refuse to receive the down payment, the non-party 1, as part of the intermediate payment on July 16, 1990, made an expression of intention to refuse to receive the down payment, and deposited the above down payment with the defendant on July 19, 199, by claiming that the above contract was cancelled on the same day, the plaintiffs did not receive the down payment before the date of deposit deposit of the defendant, and thus, the defendant cannot claim the part of the part of the down payment deposit.

C. The defendant, who is the representative director of the plaintiff company, was acting abroad and requested the above non-party 1 who is the director of the plaintiff company to cancel the contract of this case, but the above non-party 1 refused to cancel the contract of this case on July 13, 1990. The defendant expressed to the plaintiffs' intent to cancel the contract of this case on July 13, 1990, and notified the plaintiff that the non-party 2 would not receive the contract deposit amount of 705,000,000 won after deducting the aggregate of corporate tax and defense tax from the contract deposit amount of 70,000 won from the above 70,000,000 won from the above 18,000,0000 won from the above 7,000,000 won from the above 10,000,000 won from the above 16,000,000 won from the above 10,000,000 won from the above bank.

D. As to the defendant's claim for cancellation on July 13, 1990, in order to cancel the contract pursuant to Article 565 of the Civil Code, unless the purchaser clearly expresses his/her intention to refuse to receive the amount of the down payment, the declaration of contract rescission alone is insufficient and the purchaser provides the amount of the down payment. The cancellation without providing the plaintiffs with the amount of the down payment, can not be a lawful cancellation pursuant to Article 565 of the Civil Code.

E. As to the defendant's order of rescission on July 19, 190, the commencement of performance under Article 565 of the Civil Act refers to the act of partially or partially performing the obligation, and even in cases where there is an agreement for the performance of the obligation, the performance may commence before the due date unless there are special circumstances, such as the parties' special agreement not to commence the performance before the due date, and the plaintiffs' act of receiving KRW 200,000,000 as part of intermediate payment on July 16, 199 constitutes the time when the performance under Article 565 of the Civil Act commences. Thus, even if the defendant deposited the above money on the 19th of the same month, even if the plaintiffs' deposit the above money on the 19th of the same month, it cannot be cancelled under Article 565 of the Civil Act, and the defendant deposit this amount at the same time or after that, there is no evidence to prove the fact that the contract was cancelled under Article 565 of the Civil Act.

2. Article 565 of the Civil Code limits the time of the exercise of the right to rescission to the time one of the parties begins, if one of the parties has already commenced the performance, that party has already disbursed the necessary expenses, and the parties are expected to have executed the contract. However, if the contract is rescinded from the other party at this stage, it is likely that the unexpected damages will be incurred. Thus, it is intended to prevent this.

In addition, the commencement of such performance should be deemed to have been possible prior to the due date, barring special circumstances, such as the parties’ special agreement not to commence prior to the due date, even if there is an agreement for the due date. Therefore, the lower court’s determination to the same purport is justifiable.

3. However, according to the notice of cancellation of the contract for the purchase and sale of land (No. 6-1 of July 13, 1990) issued by the defendant on July 13, 199, the defendant, as the contract of this case was notified to the plaintiffs of cancellation under Article 565 of the Civil Code, and it is inevitable that the contract of this case should be received two times the contract deposit until July 18 of the same year because the contract of this case was not established because the contract of this case, and the payment amount equivalent to one copy of the certificate of personal seal impression (for the receipt of payment), one of the employee reduction book, one of the request for payment from the account deposit, and then the non-receiving deposit was made within the deadline. Thus, the purport of the contract is that the defendant will prepare for the repayment of the contract deposit amount and pay the payment by deposit method even if it was presented to the plaintiffs, since it is not different from the claim for the receipt in the conclusion of the contract, it is doubtful whether the contract cancellation amount is performed even if the defendant is required to provide it.

4. In addition, even if it cannot be deemed that the contract has reached a legitimate offer of the cancellation fee, so long as the defendant expresses his/her intention to cancel the contract pursuant to Article 565 of the Civil Code, gives a peremptory notice to receive the cancellation fee by a certain time limit, and gives a notice to deposit in excess of the time limit, the time limit for the intermediate payment payment is reasonable to deem that there exists a benefit of time even for the defendant, who is the seller. Therefore, in the case of this case, inasmuch as there are special circumstances under which the plaintiffs, the buyer, can not start the performance before the due date, and it is reasonable to deem that the plaintiffs cannot perform it against the defendant's will. The plaintiffs' exercise of the right to cancel the contract even if they unilaterally commenced the performance prior to the due date

In this case, it cannot be deemed that the plaintiffs unilaterally deposited KRW 200,000,000, which does not exceed one-half of the intermediate payment, in the defendant's bank transaction account, to the effect that the defendant's right to cancel the contract is extinguished, and the plaintiffs' act can be deemed to have clearly expressed the defendant's intent to refuse to receive the cancellation fee.

5. In addition, in a case where the seller wishes to cancel the contract in accordance with Article 565 of the Civil Code, he must provide a double of the down payment, but if the payment of the down payment is not legitimate, the contract is cancelled when the legal provision is made within the period of the right of rescission. In addition, in a case where the seller deposits the double of the down payment in order to cancel the contract, it shall be deemed that the cause of the deposit includes the intention of cancelling the contract. Therefore, it is correct to deem that the other party has expressed his intention of cancelling the contract when

6. Thus, the judgment of the court below is justified within the scope of pointing out this out, by misunderstanding the legal principles of cancellation of contract in accordance with Article 565 of the Civil Code, and by misunderstanding the rules of evidence, hearing is not conducted, or the reasoning is not erroneous.

Therefore, it is so decided as per Disposition by the assent of all participating Justices on the bench, without further proceeding to decide on the different points of the grounds of appeal, and to reverse and remand the part against the defendant.