Whether the buyer of an apartment can refuse the performance of the obligation to pay an intermediate payment that must be done more than the obligation of the apartment selling company to move into the apartment, on the ground of the bad credit standing of the apartment selling company (affirmative), and whether the buyer of the apartment is liable for the delayed payment of the obligation to pay the intermediate payment (negative)

The obligation to pay part payments to the buyer of apartment buildings is more advanced than the obligation of the construction company which has sold apartment buildings to move into the buyer of apartment buildings; however, if there is a substantial reason to make it difficult for the construction company to perform its construction obligations under Article 536(2) of the Civil Act, or if there is a person claiming a right against the object of sale under Article 588 of the Civil Act, it is likely that the buyer may lose all or part of the right purchased. Thus, the buyer of apartment buildings may refuse to perform his/her duties until the construction company provides its performance or loses its right to purchase, and the buyer is not liable for delay of performance by itself due to the existence of such right of refusal. Therefore, even if the buyer did not pay part payment to the construction company, he/she is not liable for delay.

Articles 536(2) and 588 of the Civil Act

Plaintiff 1 and 109 others (Law Firm Sung & Yang, Attorneys Kim Jong-woo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Sejong, Attorney Park Jong-young et al., Counsel for the defendant-appellant) who is the administrator of Y-young, the administrator of Y-young, the non-party 1's lawsuit taking over the lawsuit of the non-party 2, the liquidation company

Seoul High Court Decision 2001Na55927, 55934 decided April 13, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

Upon examining the reasoning of the judgment below in light of the records, the court below acknowledged the facts as stated in its judgment after compiling the evidence adopted in its judgment. The plaintiffs' obligation to pay part-time payment by the reorganization company (hereinafter "processing company") is more preemptive than the obligation to move the plaintiffs into the apartment of this case, or the obligation to pay part-time payment by the reorganization company to the plaintiffs, or the bad credit standing or property status of the reorganization company is considerably difficult to fulfill the obligation of the reorganization company under Article 536 (2) of the Civil Code, or the purchaser's assertion of right against the sale object under Article 588 of the Civil Code is likely to lose the whole or part of the right purchased by the reorganization company. Thus, the plaintiffs can refuse to perform their obligation until the reorganization company's performance or purchase is not likely to lose its right, and the plaintiffs are not liable for delay due to the existence of such right to refuse payment of part-time payment by the reorganization company of this case. Thus, we affirm the judgment that the plaintiffs are not liable for delay.

As pointed out in the ground of appeal, the court below did not err in the misapprehension of legal principles as to the right to defense against apprehensions under Article 536 (2) of the Civil Act, or in the misapprehension of legal principles as to the right to refuse payment under Article 588 of the Civil Act, or in the incomplete deliberation as to the limit of risk. The Supreme Court decision cited in the ground of appeal is inappropriate to be invoked in this case with different contents and purport. The ground of appeal

2. As to grounds of appeal Nos. 3 and 4

In full view of the evidence adopted in its decision, the court below acknowledged the facts as stated in its decision, and rejected the defendant's assertion that "The agreement in this case was made in order for the reorganization company to go against the construction and supply contract relationship of the apartment in this case due to its own fault, such as default and provisional attachment on the site of the apartment in this case, and the late payment charge problem at that time was an important issue, but it was judged that there was an agreement only on the remaining issues such as the liquidation company's obligation to pay compensation for delay without reaching the agreed point, and then the liquidation company agreed to pay the late payment charge for the part payment at the time of the agreement in this case," or "the agreement on compensation for delay of the reorganization company has an obligation to pay the late payment charge for the part payment to the plaintiffs at the time of the agreement in this case, and as long as the plaintiffs did not pay it, it is unjust for the plaintiffs to pay the late payment charge, it set off the amount equal to the claims of the plaintiffs as unjust enrichment

As pointed out in the ground of appeal, the court below did not err by violating the rules of evidence concerning the interpretation of the agreement in this case, by misapprehending the legal principles, or by violating the rules of evidence concerning the agreement for delay, or by misapprehending the legal principles. This part

3. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Shin Hyun-chul (Presiding Justice)