[1] In a case where the seller of a real estate sales contract agrees that if the buyer fails to pay the remainder by the due date, the contract shall be automatically rescinded, whether the seller shall provide the seller with the performance of his/her obligation on the due date for the payment of the remainder (affirmative)

[2] In a case where a purchaser intends to complete the procedure for registration of transfer of ownership in the name of a third party from a seller for the purpose of resale, whether the seller's provision of a certificate of official seal impression to the buyer is legitimate (negative)

[1] Even if there is an agreement that the buyer fails to pay the price by the due date, the obligation of the buyer to pay the remaining price and the seller's obligation to register ownership transfer has a simultaneous performance relationship, barring any special circumstances, it shall be deemed that the sales contract is automatically terminated only when the seller prepares documents necessary for the registration of ownership transfer at the due date for the remaining payment and provides the buyer with performance, such as informing the buyer of the performance, and makes the buyer enter into the delay of performance. However, even if the buyer has failed to pay the due date, the contract shall not be deemed automatically rescinded.

[2] Even if a purchaser directly completed the procedure for ownership transfer registration under the name of a third party for the purpose of resale to a third party, it is impossible for a purchaser to have completed the procedure for ownership transfer registration under the name of any person with a certificate of personal seal impression which became a disturbance. Therefore, it is difficult to deem that the above documents alone offered performance.

[1] Article 544 of the Civil Code / [2] Article 544 of the Civil Code

[1] [2] Supreme Court Decision 93Da777 delivered on December 28, 1993 (Gong1994Sang, 509) / [1] Supreme Court Decision 88Meu28891 delivered on July 25, 1989 (Gong1989, 1294) Supreme Court Decision 91Da15614 delivered on July 24, 1992 (Gong192, 2514), Supreme Court Decision 94Da8600 delivered on September 9, 1994 (Gong194Ha, 2613)

Plaintiff (Attorney Kim Young-chul, Counsel for the plaintiff-appellant)

Defendant (Attorney Han-soo et al., Counsel for defendant-appellant)

Seoul District Court Decision 97Na14551 delivered on November 14, 1997

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

The grounds of appeal and supplementary appellate brief are examined together.

1. On the first ground for appeal

Even though there is an agreement that if the buyer fails to pay the price by the due date for the payment of the remaining price, the obligation of the buyer to pay the remaining price and the seller's obligation to transfer ownership registration simultaneously takes place, barring any special circumstances, it shall be viewed that the sales contract automatically is terminated only when the seller prepares documents necessary for the registration of ownership transfer at the due date for the payment of the remaining price and provides the buyer with performance, such as informing the buyer of the performance, and makes the buyer enter into the delay of performance, and even if the buyer does not have any delay of performance, the contract cannot be deemed automatically terminated due to the payment of the price (see, e.g., Supreme Court Decisions 94Da8600, Sept. 9, 1994; 93Da777, Dec. 28, 1993).

The court below acknowledged the facts as stated in its reasoning based on evidence. The plaintiff did not pay the remainder by April 30, 1996, which is the date of payment of the real estate sales contract of this case, and agreed to cancel the sales contract without a separate notice until May 13 of the same year because the plaintiff did not pay the remainder by the due date, and the plaintiff did not pay the remainder by the due date, and the contract of this case was lawfully terminated by May 13 of the same year. The plaintiff did not pay the remainder by the due date, but it is recognized that the plaintiff did not pay the remainder by the due date to the defendant, but there is no evidence that the plaintiff agreed to pay the remainder by May 13 of the same year without being provided with all documents necessary for the application for ownership transfer registration, such as a certificate of personal seal impression, right to registration, power of representation, etc. The plaintiff's obligation to pay the remainder by the plaintiff and the defendant's obligation to provide the registration documents, as well as that of the defendant's obligation to pay the remainder by the date of payment of the contract of this case.

2. On the second ground for appeal

The court below rejected the defendant's assertion that since the plaintiff purchased the real estate of this case from the time of the sales contract to the third party and sold it to the third party, since the defendant was issued a certificate of personal seal impression that the plaintiff transferred to anyone to the third party and thus, the plaintiff should be deemed to have lawfully provided the above certificate of personal seal impression and resident registration certificate, even if the plaintiff directly conducted the transfer registration procedure under the third party's name for the purpose of resale to the third party, the purchaser's disturbance cannot be deemed to have provided the above documents alone because the above certificate of personal seal impression which the plaintiff had been the official seal certificate cannot complete the transfer registration procedure under the third party's name. In light of the provisions of Article 13 (2) of the Enforcement Decree of the Records and the Certification of Personal Seal Imprint, the judgment of the court below is justified and it is not erroneous as otherwise alleged in the grounds for appeal.

3. Therefore, the appeal shall be dismissed and all costs of appeal shall be assessed against the losing defendant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Jeong Jong-ho (Presiding Justice)