[1] The purport that Article 565 of the Civil Code limits the time of exercise of the right of rescission to the time when one of the parties commences performance, and in the event that there is an agreement during the performance period, whether the performance can be commenced before the fulfillment period (affirmative with qualification)

[2] The case affirming the judgment of the court below holding that, in case where the market price increase after the conclusion of a sales contract was anticipated, the seller requested the increase of the purchase price without presenting the specific amount orally, the buyer provided the intermediate payment before the due date, and the seller thereafter deposited the intermediate payment before the due date, and the seller exercised the right of rescission, the basic facts of the sales contract cannot be deemed to have been changed merely due to the market price increase, and there is no inevitable circumstance that the commencement of the performance before the due date should not be allowed, the seller cannot exercise the right of rescission

[1] Article 565 of the Civil Code limits the time of the exercise of the right to rescission to the time when one of the parties commences the performance of the right to rescission until the time when one of the parties has already commenced the performance of the right to rescission, and the party is expected to incur unexpected damages if the contract is rescinded by the other party at this stage, and thus, it is intended to prevent the occurrence of unexpected damages if the contract is rescinded by the other party at this stage, and even if there is an agreement for the due date, the performance may commence before the due date unless there are special circumstances, such as a special agreement which the party

[2] The case affirming the judgment of the court below that, in case where the market price increase after the conclusion of a sales contract was anticipated, the seller requested the increase of the purchase price without presenting the specific amount orally, the buyer provided the intermediate payment before the due date, and the seller thereafter deposited the intermediate payment before the due date and exercised the right of rescission by exercising the right of rescission, the seller cannot be deemed to have changed the basic facts of the sales contract on the ground that the market price increase alone cannot be deemed to have changed, and thus, the seller cannot exercise the right of rescission as the seller cannot exercise the right of rescission on the ground that there is any inevitable circumstance that the commencement of the performance before the due date should not be allowed.

[1] Articles 153, 468, and 565 of the Civil Act / [2] Articles 153, 468, and 565 of the Civil Act

[1] Supreme Court Decision 92Da31323 delivered on January 19, 1993 (Gong1993Sang, 721) Supreme Court Decision 97Da9369 delivered on June 27, 1997 (Gong1997Ha, 2345) Supreme Court Decision 2002Da46492 delivered on November 26, 2002 (Gong2003Sang, 215)

Dong Young-young Co., Ltd. and one other (Attorneys Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Jung-soo et al., Counsel for the defendant-appellant)

Intervenor joining the Defendant

Seoul High Court Decision 2003Na37862 delivered on January 16, 2004

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

1. As to ground of appeal No. 1

In full view of his adopted evidence, the court below acknowledged the fact that the conclusion of the sales contract of this case and the announcement of the policy for mitigation of measures against high restriction, the defendant's request for increase, the defendant's request for intermediate payment of the plaintiff's part payments, the defendant's deposit of down payment, the plaintiffs' intermediate payment deposit, etc., and on the other hand, the non-party representative of the defendant 1 made a verbal request for increase to the plaintiff Dong Jong Young, etc., but it did not present any specific amount, and it did not have passed a resolution of the board

The court below's finding of facts is just based on the evidence of the records, and further, the court below did not err by failing to exhaust all necessary deliberations or by misapprehending the facts in violation of the rules of evidence, since it is apparent that the plaintiff Dong Jong-young et al. did not consider the payment of the purchase price for access to land and the design cost for the execution of the contract of this case.

2. As to ground of appeal Nos. 2 and 3

Article 565 of the Civil Code limits the time of exercise of the right of rescission to the time when one of the parties begins to perform the obligation, which party has already disbursed the necessary expenses when one of the parties has already commenced to perform the obligation, and the parties are expected to undertake the contract. In such a stage, the other party is anticipated to incur unexpected damages if the contract is rescinded by the other party. Thus, the other party is likely to prevent the occurrence of unexpected damages, and even if there is an agreement for the due date, the party may commence the performance before the due date unless there are special circumstances, such as a special agreement which the other party does not commence before the due date does not commence (see Supreme Court Decision 92Da31323, Jan. 19

In full view of the evidence employed by the court below, the defendant requested the plaintiff 2 to increase the purchase price to the defendant 2's office's non-party 2's non-party 2's non-party 2's non-party 3 and non-party 4's director's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 2's non-party 1's non-party 2's non-party 2's non-party 2's non-party 2's.

Furthermore, the lower court determined that: (a) the Defendant’s request for the increase of the purchase price to the Plaintiff Jong Young-young et al. was unreasonable in light of the principle of civil law that would have to recognize the binding force of the contract based on free will; (b) there was no inevitable circumstance other than to threaten the existence of the contract; (c) the high-level restrictive measure was continuously written and the Defendant was aware of it; and (d) the Defendant would only cancel the contract of this case or pay the down payment for reasons of the increase in market price; and (c) it would not be unreasonable to deem that it would not be unreasonable for the Defendant to have actively cancelled the contract of this case for the reason that it would not have been able to exercise the right to cancel the contract of this case on the grounds that it would not have been unreasonable to deem that it would have been unreasonable for the Defendant to have been able to exercise the right to cancel the contract of this case on the ground that it would not have been able to exercise the right to cancel the contract of this case on the ground that it would not have been able to exercise the right to cancel the contract.

In light of the above legal principles, the lower court did not err by misapprehending the legal doctrine on the commencement of performance, or by misapprehending the legal doctrine on special circumstances that cannot be commenced before the due date.

In addition, the above 92Da31323, which recognized the seller's right to cancel the contract in spite of the buyer's payment of intermediate payment, is related to the case where the seller has notified the buyer of the termination before the buyer's performance and urged the buyer to receive the amount of the contract deposit, and the specific contents of

3. Conclusion

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

Justices Lee Hong-hoon (Presiding Justice)