The case holding that since it is not recognized that there was an agreement between the other party to choose an object according to the contract of sale and purchase, the choice shall be deemed to be the debtor pursuant to Article 380 of the Civil Act.

[1] Articles 380 and 385 of the Civil Act

Supreme Court Decision 70Da877 Delivered on July 11, 1972

Manyel tin

Lee Jong-sung (Attorney Kim Jong-il et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2001Na41256 delivered on January 24, 2003

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

1. The judgment of the court below

A. According to the reasoning of the judgment below, the court below confirmed that the defendant's share transfer registration was made on August 31, 1982 between the plaintiff 2 and the 17 parcels on August 17, 1982, "10 square meters out of 17 parcels on the condition that the defendant would have been sold to 80,000 won out of 17 parcels on the condition that "No. 12 shall be delivered together with the completion of the lawsuit" (No. 12, hereinafter referred to as "the sales contract of this case") 200, 196, 206, 30, 1967, 17, 174, 1764, 197, 206, 360, 196, 206, 196, 30,000 won and 17,00,000 won on the remaining parcels on the ground of the plaintiff 2's share transfer registration on the ground of this case.

B. Furthermore, according to the facts found, the court below held that the defendant sold 100 square meters out of the land No. 1 and 2 to the plaintiff during the lawsuit against the Lee River basin, but the defendant transferred 1/2 equity to the plaintiff immediately after the completion of the lawsuit about the application for provisional disposition of the Lee River Water, etc., on the land No. 1 and 2 after the completion of the lawsuit, the 100 square meters among them was determined through the agreement of this case on the premise that the defendant had already sold to the plaintiff, and that the specific implementation method was already determined through the agreement of this case on the land No. 1/2 equity 72.479 square meters (479 square meters x 0.3025 square meters x 2) out of the land No. 27.521 (100 square meters - 72.479 square meters) among the land No. 228, Mar. 14, 1990, the court below held that the plaintiff's ownership transfer registration was made to the plaintiff No. 26. 1988.

2. The judgment of this Court

A. In light of the evidence revealed in the record, it seems inappropriate for the court below to have judged that the real estate sales contract (Evidence A No. 12, No. 4-2) was made at the time of August 31, 1982 with respect to the instant sales contract, but the fact-finding of the court below as to the conclusion of the sales contract is just and acceptable, and there is no error of law by misunderstanding facts against the rules of evidence or incomplete deliberation.

B. However, it is difficult to accept the lower court’s determination that the subject matter of the instant sales contract was specified as 27.521 p.m. of the land 2 in addition to 72.479 p.m. of shares 1/2 of the land 1.

First of all, since the object of the instant sales contract was agreed upon as 100 square meters out of the 17 parcels of land as stated in its holding, the obligation to transfer ownership in 100 square meters is the selective obligation as stipulated in Article 380 of the Civil Code (see Supreme Court Decision 70Da877, Jul. 11, 1972, etc.). The scope of the land to be selected under the instant contract can be deemed to have been reduced to 1 and 2 land out of the 17 parcels of land. However, in light of the developments leading up to the instant agreement or the language and text of the said agreement, it is difficult to view that the object was specified as 1/2 equity out of the 17 parcels of land as 27.521 square meters out of the 27.521 square meters.

Rather, Article 385(1) of the Civil Act provides that "if it is impossible from the beginning or becomes impossible after the commencement of several acts of choice for the purpose of claim, the purpose of the claim is remaining," and Paragraph (2) of the same Article provides that "if it becomes impossible to perform due to the negligence of the party who has no choice, the provision of the preceding paragraph shall not apply." Thus, the defendant's duty of registration of ownership transfer at 27.521 out of the second land against the plaintiff was omitted in the impossibility of performance as the reasons stated in its holding. Meanwhile, there is no evidence to prove that there was an agreement to give the plaintiff the right of choice of object under the sales contract of this case to the plaintiff, the choice shall be deemed to be the debtor, and therefore, it shall be deemed that the remaining 27.521 degrees is specified as the land that is not the land 1.

C. Nevertheless, solely based on its stated reasoning, the lower court determined that the object of the instant sales contract was specified at KRW 27.521 of the land 2 in addition to KRW 1/2 of the land No. 72.479. Thus, the lower court erred by misapprehending the legal doctrine on the specification of selective liability, which affected the conclusion of the judgment.

3. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yoon Jae-chul (Presiding Justice)