A. In cases where a seller of real estate fails to perform a pre-performance obligation, and the date of payment of the remainder for the parties to a contract is excessive without any provision of both parties to the contract, whether the seller is liable for the failure to perform the pre-performance obligation (negative)

B. Criteria for determining whether the estimated amount of damages under Article 398(2) of the Civil Act is unreasonably excessive or excessive

A. In a real estate sales contract, even if the seller did not specify a part of the subject matter of the purchase and sale obligation, if the date of payment for the remainder of the purchase and sale arrives before the termination of the contract, and the seller's date of payment for the transfer registration of ownership at the same time with the remainder of the purchase and sale is not paid until the termination of the contract, and if the seller did not provide the documents required for the transfer registration of ownership at the same time, the seller's duty of explanation and the supply of the documents required for the transfer registration of ownership and the payment of the remainder of the buyer's payment are in a simultaneous performance relationship. Thus, the seller is not liable for delay

B. Whether the estimated amount of compensation under Article 398(2) of the Civil Act is unreasonably excessive should be determined according to what is the estimated amount to be paid by the general public, taking into consideration all circumstances, such as the status of the obligee and obligor, purpose and content of the contract, comparison of the amount of debt and estimated amount of debt, transaction practices at the time of the transaction, economic condition, etc.

(a) Article 536(b) of the Civil Act

A. Supreme Court Decision 70Da344 delivered on May 12, 1970, 80Da268 delivered on April 22, 1980, and 87Meu1029 delivered on September 27, 1988

[Defendant-Counterclaim] Plaintiff 1 and one other, Counsel for defendant-appellant-appellee)

Defendant-Counterclaim Plaintiff (Attorney Han-chul et al., Counsel for plaintiff-appellant)

Daegu District Court Decision 87Na63 (Main Office), 64 (Counterclaim) Decided October 15, 1987

The appeal is dismissed.

The costs of appeal are assessed against the Defendant (Counterclaim Plaintiff).

As to the Defendant’s Attorney’s ground of appeal:

1. In the real estate sale and purchase contract, even if the seller did not specify part of the object of the sale and purchase which is subject to prior performance, if the date of the sale and purchase arrives without payment of the remaining price until the date of the sale and the seller's transfer registration required documents for ownership transfer registration at the same time with the remaining price had not been provided until the date of the sale and purchase, the seller's obligation to perform the above name and the seller's obligation to pay ownership transfer registration and the buyer's payment of the remaining price are in a simultaneous performance relationship. At that time, the seller shall not be held liable for delay of performance in failure to specify part of the object of the sale and purchase (see Supreme Court Decisions 70Da3444 delivered on May 12, 197; 80Da268 delivered on April 22, 198, 87Meu1029 delivered on September 27, 1988).

According to the decision of the court below, in the contract of this case, the plaintiffs agreed to order the defendant to first issue an order at the same time with the intermediate payment of the factory and its incidental facilities, the Korea Industrial Standards Display Authority, and other property property, which are the subject matter of sale and purchase, and the defendant did not issue an order to order the warehouse within the factory, which is a part of the subject matter of sale and purchase, and the defendant did not pay the remainder by July 10, 1982 agreed. On July 15, 1985, the plaintiffs notified the defendant to pay for the transfer of ownership of the real estate of this case with the documents necessary for the registration of the transfer of ownership of this case and did not demand payment to the defendant, and did not look at the factory three times from July 22 to July 25, 1985 in order to order the non-known warehouse, but the defendant did not order the defendant to use the above warehouse as a rubber factory.

According to the above factual relations, since July 11, 1982, both obligations of the plaintiffs and the defendant under the contract of sales and purchase are simultaneously performed, and thereafter, as long as the defendant refused to receive the name of the defendant even though the plaintiffs provided the performance for the order of warehouse, the plaintiffs shall be deemed to have provided the performance of their obligations for the order of warehouse. In the same purport, the court below's acceptance of the plaintiffs' assertion on the cancellation of the contract of sales and purchase based on the reasons attributable to the defendant who delayed the duty of payment of the remaining amount, is just and there is no error of law such as misunderstanding of legal principles or lack of reasoning or incomplete deliberation. The argument is groundless.

2. It is also obvious that at the time of the plaintiffs' demand for the payment of remaining amount to the defendant around July 15, 1985, the registration of seizure was completed by Daegu-si ( Address omitted) Special Metropolitan City/Metropolitan City as to the plaintiff 1 share of 3002 square meters in factory site, one of the subject matter of the sale in this case, and the defendant alleged that the defendant's demand for payment of remaining amount without submitting documents to cancel the above seizure registration is not a legitimate provision of performance.

However, according to the evidence Nos. 10-1, 2 (Urging of Notice and Attachment Report) which was not rejected by the court below, the delinquent tax amount related to the above attachment can be cancelled at any time by paying the tax amount due to the lapse of 308,880 won, and compared to this, the remainder payment obligation that the defendant should perform by paying the ownership transfer registration and redemption amount exceeds 160 million won, and even if the above attachment registration was made, it cannot be seen that it would interfere with the defendant's use or profit-making of the above factory under the name of the above factory or the registration of transfer of ownership.

Therefore, the defendant may refuse the payment of the remaining amount equivalent to the above attached claim, apart from the fact that the defendant did not have documents necessary for the cancellation of the above attached registration, it cannot be said that there was no provision of the plaintiffs' obligation to transfer ownership of the subject matter of sale in this case.

The court below's omission of judgment on the above argument by the defendant cannot be deemed to have committed an unlawful act that affects the conclusion of the judgment, and therefore the arguments cannot be adopted.

3. Article 398(2) of the Civil Act provides that the court may reduce the estimated amount of compensation to a reasonable extent where the estimated amount of compensation for damage is unreasonably excessive. The question of whether the estimated amount of compensation is unreasonably excessive is determined according to which the estimated amount of compensation can be accepted by the general public, taking into account all the circumstances, such as the status of the obligee and the obligor, the purpose and content of the contract, the comparison of the amount of the obligation and the estimated amount of the compensation, the transaction practices at the time, and economic conditions.

In the case of the instant sales contract, on April 9, 1982, the Defendant purchased a factory, etc. owned by the Plaintiffs in 270 million won on the same day, and paid 27 million won on May 10 of the same year the intermediate payment of 63 million won on the same day, and received an order to use the subject matter and profit therefrom, and the Defendant bears 40 million won of the Plaintiff’s bank liabilities, and the remaining amount of 140 million won shall be paid up to July 10 of the same year. If the Defendant fails to perform his obligation by the payment date of the remaining payment, it is decided to waive the down payment and intermediate payment already paid, and if the Plaintiffs violated the contract, the Defendant was to have the subject matter transferred without payment of the remaining amount. The Defendant paid 15 million won on July 31 of the same year and did not pay the remainder.

In the above sales contract, the estimated amount of compensation for damages, compared to the purchase price of 270 million won, falls under 90 million won and 1/3 thereof, which seems to be excessive compensation. However, the defendant paid only the down payment and the intermediate payment, and made it possible to use and profit from the factory and the body of the facilities, which are the object of the sale, and made it possible for the defendant to use and profit from the factory and the body of the facilities, which are the object of the sale. In light of the contract's operational profit and the plaintiffs' damages caused by the use of

4. According to the reasoning of the judgment of the court below, the court below, while dismissing the defendant's counterclaim as it goes against the res judicata of the final and conclusive judgment. Since the sales contract of this case was lawfully rescinded, the defendant's claim seeking the implementation of the procedure for ownership transfer registration is groundless on the premise that the sales contract continues to exist effectively. Therefore, as the defendant's assertion, even if the court below's judgment has taken a misunderstanding of the legal principles as to res judicata, it cannot be accepted as it does not affect

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 Lee Jae-sung (Presiding Justice)