[1] Legal relations in cases where all co-owners sell their shares to the same purchaser under a single sales contract in the form of a single sales contract, and in cases where the sales contract is actually a single sales contract, whether one of the co-owners may rescind the part of the sales contract for his/her shares (negative)

[2] The case holding that in case where the purchaser who entered into a sales contract with all the co-owners on the whole real estate which is the jointly owned property takes over the whole real estate from one of the co-owners, other co-owners cannot exercise the claim of real right based on ownership or the claim of return of unjust enrichment against the purchaser

[1] Each co-owner may freely dispose of shares owned by him/her, so even in cases where all co-owners sell all shares owned by him/her to the same purchaser under a single sales contract in form, a separate sales contract was established for each co-ownership in substance, barring special circumstances where the obligation to transfer ownership for each share and the obligation to pay payment are indivisible by the parties' declaration of intent, and it is possible for some co-owners to cancel a sales contract for each share based on a buyer's failure to pay the purchase price. However, in cases where the sale contract is deemed to be a single sales contract even in substance where the obligation to transfer ownership for each share and the obligation to pay payment are indivisible by the parties' declaration of intent, the part of the sales contract for one co-owner's share shall not be rescinded for that reason, even if one of the co-owners was unable to receive part of the purchase price corresponding

[2] The case holding that in case where the purchaser who entered into a sales contract with all the co-owners on the whole real estate which is the jointly owned property takes over the whole real estate from one of the co-owners, other co-owners cannot exercise the claim of real right based on ownership or the claim of return of unjust enrichment against the purchaser

[1] Articles 263 and 547 (1) of the Civil Act / [2] Articles 213, 263, 265, 568, 741 and 750 of the Civil Act

[1] Supreme Court Decision 94Da59745 delivered on March 28, 1995 (Gong1995Sang, 1748)

Plaintiff (Attorney Park Young-young et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Yang, Attorneys Park Byung-hee et al., Counsel for the defendant-appellant)

on March 30, 2006

1. The Defendant (Counterclaim Defendant) received 145,00,000 won from the Plaintiff (Counterclaim Defendant) at the same time, and simultaneously implement the procedure for the registration of ownership transfer on October 18, 2004 with respect to one-half of the real estate listed in the separate sheet to the Plaintiff (Counterclaim Defendant).

2. The Plaintiff (Counterclaim Defendant)’s remaining principal claim and the Defendant (Counterclaim Plaintiff)’s counterclaim are dismissed, respectively.

3. The costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) and the Defendant (Counterclaim Plaintiff), respectively, by 1/5 of the total costs of the lawsuit and counterclaim.

1. Main lawsuit

The Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) shall implement the procedure for the registration of ownership transfer on October 18, 2004 with respect to one half of the real estate listed in the separate sheet against the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”).

2. Anti-action:

The plaintiff shall deliver to the defendant the real estate stated in the separate sheet, and shall pay 5% per annum from November 10, 2004 to the service date of a copy of the counterclaim of this case, and 20% per annum from the next day to the day of complete payment, and shall pay 89,80 won per month from November 10, 204 to the day of complete delivery of the real estate stated in the separate sheet.

1. Basic facts

The following facts may be acknowledged in full view of the following facts: (a) there is no dispute between the parties; (b) evidence Nos. 1, 3 through 7; and (c) evidence Nos. 11; (d) evidence Nos. 8; and (e) evidence Nos. 9 (including each number); and (e) witness Non-Party 1 and witness Non-Party 2’s testimony.

A. On October 18, 2004, the Plaintiff purchased the land for factory and buildings indicated in the separate sheet (hereinafter “instant real estate”) from the Defendant and Nonparty 3 for the purpose of relocating and operating the factory as the manufacturer and exporter of the prime contractor (hereinafter “instant sales contract”).

B. On October 18, 2004, the date of the contract, the Plaintiff paid 29,000,000 won for the down payment to the Defendant and Nonparty 3 (the down payment between the Defendant and Nonparty 3 was first reverted to Nonparty 3). On November 10, 2004, the date of payment for the remainder of KRW 261,000,000, which was the date of payment for the remainder of the remainder of KRW 30,000, but Nonparty 3 paid the remainder of KRW 116,00,000 to Nonparty 3, but the Defendant refused to receive the remainder of KRW 145,00,000, but the Defendant refused to receive it.

C. On November 15, 2004, the Plaintiff received the registration of ownership transfer for one-half portion of the instant real estate from Nonparty 3 by the Daejeon District Court’s receipt registry office, as prescribed by Article 28129. On January 15, 2005, the Plaintiff occupied and used the instant real estate while operating the original factory from the time of delivery of the instant real estate by Nonparty 3.

2. Determination as to the claim on the principal lawsuit

A. As to the cause of claim

According to the above facts, the defendant is obligated to implement the registration procedure for transfer of ownership on October 18, 2004 with respect to one half of the real estate of this case to the plaintiff, except in extenuating circumstances.

B. As to the defendant's defense

(1) In concluding the instant sales contract, in order to compensate for damages equivalent to the difference between the Defendant’s successful bid price and the above sales price, the Defendant: (a) carried out the registration procedure for transfer of ownership to Nonparty 2 as to the shares of Nonparty 3 in the pre-North Korea (detailed address omitted) and 13 parcels and above-ground buildings, which were held in title by Nonparty 2, the Defendant’s father, and agreed to have Nonparty 2 die by actively cooperating with the Plaintiff; and (b) took them as the condition of the instant sales contract; (c) Nonparty 3 or the Plaintiff did not perform the said contract; and therefore, (d) therefore, the instant sales contract is deemed null or void.

The defendant's defense is without merit, since the statement of No. 12 and the testimony of Non-Party 2 by Non-Party 1 as shown in the above facts that correspond to the above facts that the plaintiff and the defendant agreed on between the plaintiff and the defendant is difficult to believe, and there is no other evidence to prove otherwise.

(2) Next, the Defendant asserted that the instant sales contract was cancelled, on the grounds that the Plaintiff only paid the sales amount corresponding to his share, including the down payment, to Nonparty 3, and did not perform the obligation to pay the down payment, such as not paying the down payment.

Each co-owner may freely dispose of shares owned by him. Thus, even if all co-owners sell all shares owned by them to the same purchaser under a single sales contract in form, a separate sales contract was established by each co-owner's expression of intent, barring special circumstances where the obligation to transfer ownership and pay payment is indivisible. A part of co-owners can cancel a sales contract for each co-owner's share based on a buyer's failure to pay the purchase price. However, if the sale contract is deemed a single sales contract in substance where the obligation to transfer ownership and pay payment are indivisible by the parties' declaration of intent, the part of the sales contract for each co-owner's share cannot be cancelled for that reason even if one of the co-owners was not paid part of the purchase price corresponding to his share ratio (see Supreme Court Decision 94Da59745, Mar. 28, 1995). The defendant's defense of cancellation is based on the premise that the sales contract of this case was actually established separately as to the co-ownership of the defendant and the co-ownership of the non-party.

In light of the above facts, the plaintiff purchased the real estate of this case as the manufacturer and exporter of the original company, and formed the sales contract of this case on the premise that each share in the real estate of this case for the purpose of purchase is indivisible. The sales contract of this case was concluded as a single sales contract for the entire real estate of this case between the defendant, the non-party 3, and the plaintiff. The sales price of this case was determined as a single sales contract for the whole real estate of this case, and the sale price was determined as a single amount for the whole real estate of this case without being specified for each seller. The payment of the purchase price was not made individually from the buyer, but was made as the buyer, the plaintiff and the non-party 3, the buyer, paid the down payment to the seller, and was paid only to the non-party 3 for the payment of the balance. Thus, the sales contract of this case is a single sales contract in substance with the declaration of intention of the parties to the contract, and therefore, even if the defendant, the seller of this case, has no reason to cancel the sales contract of this case.

Even if the sales contract of this case is deemed to be two separate contracts established for the co-ownership of the defendant and the non-party 3's co-ownership, the person who intends to cancel the contract in a bilateral contract may cancel the contract through a peremptory notice for a reasonable period of time. In the case of a real estate sales contract, it is not necessary for the seller to actually provide documents, etc. necessary for the registration of ownership transfer in order to omit the buyer's delay, but it is necessary to prepare the above documents, etc. at least to notify the buyer of the fact and to notify the buyer of the fact to receive the balance and to receive it. Thus, there is no assertion or proof as to the fact that the defendant provided the obligation in the cancellation of the contract of this case. Rather, the defendant has no prepared documents, etc. necessary for the registration of ownership transfer, and therefore, the defendant's defense is without merit.

(3) Finally, the defendant shall restore the part voluntarily removed among the real estate of this case to its original state and return it to the defendant, and the defendant shall not be able to perform the procedure for ownership transfer registration for the defendant's share among the real estate of this case before performing the obligation under the contract

As seen in the determination on the following counterclaims, the Plaintiff is entitled to possess and use the instant real estate, which is the subject matter of the instant sales contract, as a purchaser of the instant sales contract, and thus, the Plaintiff has no obligation to restore the said part of the instant real estate to its original state and return it to the Defendant.

However, according to the statement in Gap evidence No. 1, the remaining amount in the sales contract of this case can be acknowledged to be agreed to be paid in return for documents necessary for the transfer of ownership, and the fact that 145,000,000 won out of 290,000,000 won has been paid so far shall be deemed to have been reverted to non-party 3, and since the above amount including the down payment of 29,00,000 won is deemed to have been reverted to non-party 3, the plaintiff has the obligation to pay 145,00,000 won for the unpaid remaining amount, and the obligation to pay the above remaining amount and the obligation to transfer ownership of the defendant are related to simultaneous performance, so the defendant's defense is reasonable within the above scope

C. Sub-committee

Therefore, at the same time, the Defendant is obligated to pay the Plaintiff a balance of KRW 145,00,000, and at the same time, to implement the registration procedure for transfer of ownership on October 18, 2004 with respect to one half of the instant real estate.

3. Judgment on a counterclaim

A. The plaintiff and defendant's assertion

(1) The defendant asserts that the plaintiff is obligated to transfer the real estate of this case to the defendant and pay the amount equivalent to one-half of the defendant among the damages equivalent to the cost of the removed building and the rent equivalent to one-half of the defendant's share of the property of this case, since the plaintiff occupied and used the real estate of this case, which is jointly owned from November 10, 2004 without consultation or consent with the defendant as co-owner, as well as the office, restaurant, rest area, and accommodation which are part of the real estate of this case.

(2) As to this, the Plaintiff, as the buyer of the instant sales contract, has the right to possess and use the instant real estate, which is the subject matter of the instant sales contract, so the Defendant, the seller, cannot claim for delivery of the instant real estate against the Plaintiff, and the Plaintiff’s possession and use of the instant real estate after the instant sales contract cannot claim damages on the ground that it constitutes tort.

(b) Markets:

Even if a right holder of the jointly owned property is a right holder, it shall not be exclusively used without consultation with other right holder, and the remaining right holder may seek the exclusion from exclusive use as an act of preserving the jointly owned property (see, e.g., Supreme Court Decisions 93Da9392, 9408, Mar. 22, 1994; 95Da48308, Dec. 23, 1996; 95Da48308, Dec. 23, 1996). However, even if the purchaser of the jointly owned property has not yet completed the registration of ownership transfer, it shall be deemed that the right to possess and use the jointly owned property arises as the effect of the contract of sale and purchase. Thus, the seller is not entitled to exercise a right to claim the buyer's real right based on the ownership against the buyer, and the buyer's possession and use of the jointly owned property after the contract of sale and purchase are profits which are neither illegal nor legally attributable to the buyer (see, e.g., Supreme Court Decision 296Da2968297, etc.

As to the instant case, while the Plaintiff and the Defendant are co-owners with respect to the instant real estate on the registry, it is nothing more than the result that the Defendant brought about the invalidity or cancellation of the contract and failed to implement the instant sales contract as seen earlier. In substance, the Plaintiff has the right to possess and use the instant real estate, which is the subject of the instant sales contract, as the buyer of the instant sales contract. As such, the Defendant cannot seek delivery of the instant real estate as a preservation act of the jointly-owned property, and the Plaintiff’s possession and use (including partial removal) after the instant sales contract cannot be deemed as tort. Thus, the Defendant’s counterclaim claim for the instant counterclaim is without merit.

4. Conclusion

Therefore, the defendant is obligated to pay the remaining 145,00,000 won to the plaintiff at the same time with respect to the share of one half of the real estate in this case to the plaintiff on October 18, 2004. Thus, the plaintiff's principal claim is justified within the extent of the above recognition, and the plaintiff's remaining principal claim and the defendant's counterclaim are dismissed due to the lack of justifiable grounds. It is so decided as per Disposition.

[Attachment] : omitted from the list of real estate

Judges Kim Yong-seok (Presiding Judge)