The case holding that in case where, in the sales contract, even though the down payment was not actually paid, the seller in form received the down payment and again stored it to the buyer by paying the down payment on the following day, the down payment is binding as a cancellation payment by the following day as it is actually paid.

If, at the time of concluding a sales contract, the buyer, in fact, pays the down payment on the following day due to the circumstances of the buyer, and the buyer again receives the down payment and again prepares a certificate of cash custody to the buyer, the down payment shall have the nature of the cancellation money for reservation of right to cancel the contract, and at least between the parties, it shall have the same binding force as the down payment has been paid in reality until the following day. Therefore, it is reasonable to view that the parties can not rescind the contract unless it is based on repayment or renunciation, etc. of the agreed down payment.

Article 565 of the Civil Act

Plaintiff-Appellant et al., Counsel for the plaintiff-appellant

Defendant-Appellant’s Regular Rotation

Seoul High Court Decision 90Na37497 delivered on January 29, 1991

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

With respect to No. 1:

As determined by the court below, on May 19, 1989, the plaintiff entered into a sales contract with the terms and conditions as stated in its reasoning in purchasing the instant real estate owned by the defendant, and the seller entered into such contract with the agreement that if the buyer compensates for the double amount of the down payment, the buyer is not entitled to claim the return of the down payment. Meanwhile, when entering into the said contract, it is reasonable to view that the contract cannot be rescinded as long as the contract is not repaid or renounced as the contract deposit was not provided due to the plaintiff's circumstances, and the defendant actually paid the down payment at around 10:00 on the following day, but received the down payment from the plaintiff, and if the plaintiff prepares and delivers the cash custody certificate to the defendant, the down payment is deemed to have the nature of the contract deposit for the reservation of the contract termination right, and at least 10:00 on the following day, the contract deposit has the same binding force as the contract deposit was actually paid by the plaintiff and the defendant.

Therefore, the court below is just in holding that the contract rescission cannot be effective because the defendant expressed his intention to cancel the contract without providing a double amount of the contract deposit or the plaintiff expressed his intention to cancel the contract without providing a double amount of the contract deposit after paying the down payment on the 24th of the same month after the plaintiff paid the down payment on the 10:00 of the next day after the contract was agreed to pay the down payment in reality, and there is no error in the misapprehension of legal principles as pointed out above. The ground for appeal is nothing more

With respect to paragraphs 2 and 3:

In light of the records, the defendant did not assert that the sales contract of this case was formed by the defendant's mistake until the conclusion of the fact-finding trial of this case, and it was evident that the plaintiff did not simultaneously assert his obligation to pay the remainder of the contract of this case. Thus, there were no errors in the misapprehension of legal principles as pointed out in the disposition of the court below, or in the incomplete hearing, or in the misapprehension of legal principles as argued in the plaintiff's main claim for the registration of transfer under the sales contract of this case, or in the incomplete hearing,

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 Kim Yong-han (Presiding Justice)