[1] The purpose of the defense right system for simultaneous performance, and the case where each obligation to be borne by the parties is not in an inherent quid pro quo relationship with the bilateral contract, but can be admitted as a defense for simultaneous performance

[2] In a real estate sales contract where the purchaser agreed to bear value-added tax, whether the obligation to pay all the purchase price including value-added tax and the obligation to transfer ownership of real estate are concurrently performed (affirmative with qualification)

[1] When each party's right to defense of simultaneous performance is related with each other's obligation on the basis of the concept of fairness and the principle of good faith, one party's right to defense of simultaneous performance is recognized as having relations with each other in the performance thereof, so that one party may refuse to perform his/her obligation when the other party's obligation is requested to discharge his/her obligation without performing the other party's obligation or not providing the other party's obligation. In light of the purport of such a system, even if each obligation to be borne by the party is not in a bilateral contract, in accordance with the terms of the agreement on the obligation to be borne by each party in a specific contractual relationship, if such obligation is of a quid pro quo meaning and there are circumstances to recognize a relation

[2] In a real estate sales contract, in case where the purchaser agreed to pay value-added tax, it is reasonable to deem that the obligation to transfer ownership of real estate including value-added tax and the entire obligation to transfer ownership of real estate are concurrently performed, unless there are special circumstances such as the payment of value

[1] Article 536 of the Civil Code / [2] Articles 105 and 536 of the Civil Code

[1] Supreme Court Decision 91Da30927 delivered on August 18, 1992 (Gong1992, 2737), Supreme Court Decision 92Da23193 delivered on February 12, 1993 (Gong1993Sang, 962), Supreme Court Decision 94Da55118 delivered on June 30, 1995 (Gong1995Ha, 2561 delivered on April 23, 1999 (Gong199Sang, 100Da43819 delivered on March 27, 2001)

Plaintiff Association (Law Firm Rate, Attorneys Yoon Yong-pon et al., Counsel for the plaintiff-appellant)

Defendant church (Attorney Hwang-tae, Counsel for the defendant-appellant)

Defendant Intervenor’s Intervenor church

Seoul High Court Decision 2004Na38749, 38756 decided September 28, 2005

The part of the judgment of the court below regarding the main lawsuit is reversed, and that part of the case is remanded to the Seoul High Court. The remaining appeals are dismissed.

1. As to the grounds of appeal Nos. 1 and 3

The court below, after compiling the adopted evidence, found facts as stated in its decision, and found it reasonable to view that the representative of the defendant (Counterclaim Plaintiff; hereinafter only referred to as "the defendant") delivered to the non-party 2 a power delegated to the non-party 1 all the authority to conclude the sales contract of the building of this case to the non-party 2, and the defendant granted all the authority to represent the disposition of the building of this case. In granting such power to the non-party 2, it cannot be deemed that there was any condition or restriction to not sell the building of this case to the church. In light of the records, the court below's evidence, fact-finding and decision are just and acceptable, and there is no error of law such as violation of the rules of evidence, incomplete deliberation, lack of reasons, false declaration, or misapprehension of legal principles

2. Regarding ground of appeal No. 2

The court below, based on its adopted evidence, confirmed the sales contract between the defendant and the non-party 2 at the defendant's party meeting held on February 17, 2002 after the issuance to the non-party 2 of the letter of delegation, and acknowledged the representative authority of the non-party 1 as to the non-party 1 as above. The court below determined that the non-party 1 delegated the right to sell the building of this case to the non-party 2 as long as the non-party 1 obtained approval of the disposal of the building of this case from the defendant party meeting. In light of the records, the above judgment of the court below is just and acceptable, and there is no violation of the rules of evidence or misapprehension of the legal principles as to the disposal of the property jointly owned by the non-party 1.

3. As to the grounds of appeal Nos. 4 and 6

The court below held, based on its adopted evidence, that even if the plaintiff (Counterclaim defendant; hereinafter referred to as "the plaintiff") used the building of this case as a towing room, unlike the promise at the time of the conclusion of the contract, it cannot be deemed as an important violation of the duty to cancel the contract of this case merely because the violation of the contract of this degree does not constitute a ground for cancelling the contract of this case, and even if the plaintiff first moved in the building of this case before the payment of the balance and occupies and uses it, it shall not be deemed as an illegal possession in light of the circumstances stated in its reasoning. In light of the records, the court below's above evidence is just and acceptable, and there is no error of law such as violation of the rules of evidence or misunderstanding of legal principles as to the cancellation of the contract of this case, as alleged in

4. As to the fifth ground for appeal

The lower court rejected the Defendant’s assertion that the Plaintiff is obligated to complete a share transfer registration on the instant building only in repayment of value-added tax from the Plaintiff, on the ground that it is recognized that the Plaintiff, the buyer of the instant contract, agreed to bear the value-added tax pursuant to the supply of the instant building, but such Plaintiff’s obligation to pay value-added tax is in the simultaneous performance relationship with the Defendant’s duty to deliver the tax invoice, and that it cannot be deemed as having the meaning of both the Defendant’

However, we cannot accept the above judgment of the court below for the following reasons.

The right to defense of simultaneous performance is a system that recognizes a close relationship in the performance when each party's obligation is related to each other's obligation on the basis of the concept of fairness and good faith and the principle of good faith so that one party may refuse to perform his obligation when the other party's obligation is satisfied without performing the other party's obligation or not providing the other party's obligation. In light of the purport of this system, even if each obligation to the party's obligation is not in a bilateral contract, under the terms of the agreement on the obligation to be borne by each party's obligation in a specific contractual relationship, if there are circumstances to recognize a close relation in the performance because it is of a quid pro quo meaning, the right to defense of simultaneous performance can be acknowledged (see Supreme Court Decision 91Da30927 delivered on August 18, 192). Meanwhile, in a real estate sales contract, it is reasonable to view that there is a duty to register ownership transfer of all the purchase price including value-added tax and real estate ownership transfer.

According to the records, as acknowledged by the court below, the value-added tax to be imposed according to the supply of the building of this case can be known to the fact that the plaintiff agreed to bear the value-added tax. Thus, the court below determined which the plaintiff agreed to pay the value-added tax on the form, method, timing, etc. of providing performance to impose the value-added tax, and held that if the plaintiff did not pay the value-added tax by a different time and method from the purchase price, the plaintiff's obligation to pay the purchase price including value-added tax and the defendant's obligation to transfer registration should be deemed to be in a concurrent performance relationship. However, the court below held that the plaintiff's obligation to pay value-added tax cannot be deemed to be in a concurrent performance relationship because the plaintiff's obligation to pay the value-added tax is not a debt with the defendant's obligation to transfer ownership and the obligation to transfer ownership are not a quid pro quo with each other's obligation to pay the value-added tax, which affected the conclusion of the judgment by misunderstanding the legal principles on the right to defense

5. Conclusion

Therefore, the part of the judgment below regarding the principal lawsuit is reversed, and that part of the case is remanded to the court below for a new trial and determination. The defendant's remaining grounds of appeal are dismissed as it is without merit. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Yong-dam (Presiding Justice)