(a) The case holding that there is a benefit in confirming the lawsuit for confirming the cancellation of a sales contract;

(b) Where a sales contract has not yet been fulfilled at the time of commencement of reorganization proceedings, but a provisional registration for preservation of priority has been made on real estate for sale purposes, whether the custodian may rescind the contract (negative);

A. Even if it is possible to bring an action for performance seeking the return of the thing already performed as the effect of the cancellation of a sales contract, it may seek confirmation of the cancellation of a sales contract if there is a dispute as to the existence of the basic sales contract and there is an immediate interest in confirmation, and thus, there is a benefit in confirmation that there is no present legal relationship upon the cancellation of

B. Under Article 103 (1) of the Company Reorganization Act, the receiver of the reorganization company and the other party may rescind any bilateral contract for which the execution has not yet been completed at the time of the commencement of the company reorganization procedure. However, according to the opposite interpretation of Article 58 (1) of the same Act, provisional registration made pursuant to Article 3 of the Registration of Real Estate Act before the commencement of the reorganization procedure as the cause for registration prior to the commencement of the reorganization procedure can be asserted in relation to the reorganization procedure. Therefore, the provisional registration holder can make a claim for the principal registration against the administrator. Thus, the application of Article 103 of the Company Reorganization Act is excluded in relation to bilateral contract concerning any real estate for which the effective provisional registration has been made. Thus, if a sales contract has not been completed at the time of the commencement of the company reorganization procedure, but provisional registration for priority preservation has not been completed for the sale purpose of real estate owned by the reorganization company as in this case, the receiver may not rescind the sale and purchase pursuant to Article 103 (1)

(a) Article 228 of the Civil Procedure Act; Articles 103(1) and 58(1) of the Company Reorganization Act;

Administrator of the New Industries Corporation

Attorney Kim Yong-chul, Attorney Cho Yong-chul et al., Counsel for defendant-appellant

Seoul High Court Decision 80Na3178 delivered on December 1, 1980

The judgment below is reversed, and the case is remanded to Seoul High Court.

The defendant Cho Jong-sung's ground of appeal is examined (in the case of supplemental appellate briefs not less than three times the same representative impliedly submitted, the period of time is over and thus, the supplementary appellate brief shall be considered to the extent of supplement in case of supplemental appellate brief).

With respect to No. 1:

According to the reasoning of the judgment of the court below, the court below rejected the defendant's defense that the plaintiff's assertion that the contract was terminated as of June 9, 1978, that the contract was terminated, on the ground that the defendant asserts that the contract was terminated, and that even if the plaintiff can bring an action for performance seeking the return of the contract that was already performed as the effect of cancellation of the contract, if there is a dispute as to the existence of the basic contract or interest of confirmation immediately, the lawsuit for confirmation can be sought as to the existence of the contract which was terminated. Thus, as in the judgment of the court below, the defendant asserted that the plaintiff's assertion that the contract was terminated, as in the above decision of the court below, still remains valid. Thus, the court below's decision that the plaintiff's claim of this case did not purport that the present legal relationship does not exist due to the cancellation of the contract, and therefore, it cannot be said that there was an error of law by misunderstanding the legal principles of the requirements for protection of rights in the lawsuit for confirmation like the theory of lawsuit.

With respect to the third point:

According to the reasoning of the judgment below, since the above company and the defendant made a sales contract for this site owned by the above company on June 9, 1978 with the purchase price of KRW 558,40,000,000 on the same day, and KRW 1,00,000 among the intermediate payment of KRW 150,000,000 on the same day, KRW 50,000 on June 20 of the same year, and KRW 50,000 on the same day, the remaining price of KRW 308,40,000 was paid in installments to the defendant as of July 30 of the same year, and since the above contract was concluded with the above company on June 10, 1979, the above company did not reach the order of 197,000 upon the cancellation of the above contract, and the above company did not have reached the order of 30,000,0000 upon the cancellation of the above contract.

However, Article 103 (1) of the Company Reorganization Act provides that "any registration or provisional registration under Article 3 of the Registration of Real Estate Act, which was made after the commencement of reorganization proceedings as a cause for registration that occurred before the commencement of reorganization proceedings with respect to real estate or a ship, shall not be asserted in relation to reorganization proceedings," in Article 58 (1) of the same Act provides that "the same shall not apply to any registration or provisional registration made without knowledge of the fact that the commencement of reorganization proceedings is commenced." Thus, a construction contrary to the main sentence of Article 58 (1) of the same Act provides that "the provisional registration made pursuant to Article 3 of the Registration of Real Estate Act before the commencement of reorganization proceedings as a cause for registration prior to the commencement of reorganization proceedings may be asserted in relation to the reorganization proceedings, and therefore, the provisional registration holder may make a request for the principal registration against the administrator of the company subject to provisional registration. Therefore, the application of Article 103 of the Company Reorganization Act with respect to bilateral contracts concerning real estate for which such effective provisional registration has been made is excluded.

Nevertheless, as seen earlier, the lower court determined that even if the above provisional registration was made in the name of the Defendant on the building site prior to the commencement of the above reorganization procedure, it did not affect the cancellation of the above contract under Article 103 of the same Act. In so doing, it did not err by misapprehending the legal principles under Articles 103 and 58 of the same Act, thereby affecting the conclusion of the judgment.

Therefore, it is not necessary to determine the remaining grounds of appeal. It is so decided as per Disposition by the assent of all participating Justices on the bench. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Young-ju (Presiding Justice)