(a) The case recognizing the cancellation of public consultation due to the mistake of motive, and the compensation for losses; and

(b) Whether Article 536 of the Civil Act concerning simultaneous performance is applied mutatis mutandis to the duty to restore the original status upon invalidity of a contract;

(a) The case recognizing the cancellation of public consultation by reason of the mistake of motive, the compensation for losses; and

B. The purport of Article 536 of the Civil Act, which provides the right to defense of simultaneous performance, is due to the merger between the concept of fairness and the principle of good faith, and it is reasonable to apply Article 536 of the Civil Act mutatis mutandis to the case where a contract is terminated by Article 549 of the Civil Act.

A. Article 109 of the Civil Act: Article 536 of the Civil Act

B. Supreme Court Decision 75Da1241 delivered on April 27, 1976 (Gong1976,9130), 92Da45025 delivered on May 14, 1993 (Gong1993,1698), Supreme Court Decision 93Da588 delivered on August 13, 1993

Plaintiff 1 and 27 Plaintiffs, Counsel for the defendant-appellant

Changwon-si, Attorney Kim Young-han, Counsel for the defendant-appellant

Changwon District Court Decision 92Na1272 delivered on December 10, 1992

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

Defendant 1’s ground of appeal

1. According to the reasoning of the judgment below, in conducting a site development project for the private district of this case based on its adopted evidence, the court below held that the land not within the development restriction zone is subject to the project district, based on the boundary line of the development restriction zone, and the land of this case located within the boundary line with the development restriction zone was not included in the above development restriction zone, and the defendant Si did not make any remainder of the land of this case to be incorporated into the land of this case according to the public compensation and compensation for losses for the implementation of the above project plan. The plaintiffs 19 through 22 were to purchase the land of this case from the plaintiffs (the deceased non-party 1, the deceased non-party 2, the plaintiff 23 through 28, the deceased et al.) in consultation with the plaintiffs (the deceased non-party 2, the deceased et al.) in accordance with the compensation for the whole land of this case without notifying them of the fact that it is possible to purchase the remaining land of the fact that it was incorporated into the plaintiffs' request to purchase the whole land of this case.

Furthermore, when examining the developments leading up to the negotiation of the land of this case revealed in the above facts in comparison with the provisions of the above Act on Special Cases, the court below held that the plaintiffs did not respond to the request for consultation of purchase of the remaining land of this case if there was no error in the above motive as to the remaining land of this case, and that the public official belonging to the defendant in charge of the purchase consultation provided considerable extent of the causes of the above mistake, and that the size of the remaining land of this case is considerably wide compared to the part to be incorporated, or the remaining land of this case is in contact with the other land owned by them, and that the remaining land of this case could continue to be used as farmland for its previous purpose. In light of the above facts, the court below held that the plaintiffs could cancel the request for consultation of purchase of the remaining land of this case if there was no error in motive as above, and that the motive is about the important part

Although only part of the land of this case is subject to negotiation, the plaintiffs' response to consultation on the whole land including the remaining land is due to such circumstances as seen above, and if there is no such circumstance, it may be deemed that the contract would not have been made until the remaining land. Therefore, it may not be deemed that the mistake of the motive is the content of the contract, and it cannot be said that this is not an error in the important part of the expression of intent, nor is it displayed at the defendant's time. Therefore, the above judgment of the court below is just and there is no error of law such as misunderstanding of legal principles.

2. In addition, after the consultation on purchase of the land of this case was formed, the plaintiffs received compensation without any objection and transferred registration documents. Thus, the above consultation shall be deemed to have been made legally in accordance with Article 145 subparag. 1 and 2 of the Civil Act. Even if the above consultation is not made under the defendant's name, the plaintiffs exceeded the right of revocation at the time when each registration of ownership transfer was made in the defendant's name, and the right of revocation was terminated three years after the above registration date. As to the defendant's defense, the court below rejected the above defense under the presumption that the plaintiffs exceeded the above erroneous state as well as at the time when the plaintiffs received compensation for the land of this case and delivered the documents related to the registration to the defendant, and there is no evidence to prove that the plaintiffs exceeded the above erroneous state, and there is no error in the misapprehension of legal principles as to the right of ratification and revocation of declaration of intent by mistake as well as the right of revocation.

In light of the circumstances leading up to the cancellation from the purchase by consultation in this case, it cannot be said that the plaintiffs' expression of intent for cancellation after the lapse of the same period as the theory of lawsuit and the rise in land price cannot be permitted against the doctrine of the gold-competing.

3. The purpose of Article 536 of the Civil Act, which provides for the right to defense of simultaneous performance, is due to the merger between the concept of fairness and the principle of good faith, and when considering that Article applies mutatis mutandis to the duty to restore each party in the case of the rescission of a contract pursuant to Article 549 of the Civil Act, it shall be interpreted that Article 536 of the Civil Act shall apply mutatis mutandis to the case where the bilateral contract is null and void and each party shall return to one another, deeming that there is a simultaneous performance relationship. In light of the concept of fairness, there is no reason to distinguish between the duty to restore to the original state when the contract becomes null and void and the duty to cancel the contract when the contract is terminated, and if the return obligation is enforced first only to one party (see Supreme Court Decision 75Da1241, Apr. 27, 1976; Supreme Court Decision 92Da45025, May 14, 1993).

Therefore, the lower court’s judgment that the obligation to return the purchase price and to cancel the Defendant’s ownership transfer registration to be borne by the cancellation of the instant sales contract is in the simultaneous performance relationship is justifiable.

In addition, the decision of the court below is just in rejecting the defendant's assertion that the amount equivalent to the value based on the officially announced land price of July 1992 or the amount equivalent to the interest based on the commercial bank loan interest rate should be returned. The arguments are without merit.

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

Justices Kim Sang-won (Presiding Justice)