In case where a buyer claims the cancellation of a sales contract and claims the return of the down payment, etc., whether the seller may rescind the contract without demanding the performance of the remainder (affirmative)

In cases of bilateral contract in which both parties have simultaneously performed their obligations, if one of the parties has expressed his/her intention not to perform his/her obligations in advance, the other party may rescind the contract immediately without demanding performance. However, if the seller filed a lawsuit for the remainder of the purchase and sale against the buyer, and the buyer filed a lawsuit for the delay in the performance of the seller's obligation to register the transfer of ownership and filed a claim for the return of the down payment and the intermediate payment already paid as a counter-action, the buyer clearly stated that he/she did not intend to perform the obligation to pay the remainder of the purchase and sale, and the seller may rescind the contract without demanding performance against the buyer.

Article 544 of the Civil Act

Supreme Court Decision 82Da340, 82Meu796 Decided July 24, 1984

[Judgment of the court below]

[Defendant-Appellant] Defendant 1

Suwon District Court Decision 84Na171 delivered on July 20, 1984

The judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment below, the court below found that the above contract for the real estate of this case was lawfully cancelled pursuant to the defendant's notification of cancellation of contract 12,360,00 won due to the plaintiff's failure to pay the remainder of 12,30,000 won among the purchase price at the time of the above 20th of January of 1983, the court below held that the above contract was valid for the plaintiff's refusal to pay the remainder within the above 1st of February of 28 of the same year with the non-party who was the previous tenant of the above real estate and the above non-party's previous tenant's new lease agreement was affixed with the above 4th of February of the same year, and that the above non-party did not pay the remainder within the above 1st of March of the same year after the plaintiff's notification of cancellation of contract and the plaintiff's refusal to pay the remainder of the above contract for the reason that the above non-party's refusal to pay the remainder after the above contract was made by the above 20th of March of the same month.

However, in cases of bilateral contract in which both parties have simultaneously performed their obligations, if one of the parties has expressed his/her intention not to perform his/her obligations in advance, the other party may cancel the contract immediately without a peremptory notice for performance. As determined by the court below, the defendant filed a lawsuit against the plaintiff for the payment of the purchase and sale payment, and the plaintiff filed a lawsuit against the plaintiff, and the plaintiff filed a lawsuit for the claim for the payment of the purchase and sale payment, and the contract was cancelled due to the delay in performance of the defendant's obligation to register ownership transfer, and the plaintiff made a return of the down payment and the intermediate payment already paid to the defendant as a counter-action, the plaintiff clearly stated that the plaintiff did not intend to perform his/her obligation to pay the remainder as the purchaser of the purchase and sale contract. In this case, the circumstances that the plaintiff had prepared for the remainder payment of the contract, or that the plaintiff deposited the balance with the principal and interest of the contract with the defendant after the notice of the above termination of contract cannot be the grounds for different judgment. Thus, the defendant's notification of cancellation is legitimate.

The court below's dissenting opinion is that the defendant's notification of the cancellation of contract is illegal and thus rejected the defendant's claim and accepted the plaintiff's claim on the premise that the above contract continues to exist effectively, which affected the conclusion of the judgment. Therefore, the appeal pointing this out is justified.

Therefore, the judgment of the court below is reversed, and the case is remanded to Suwon District Court Panel Division. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kang Jin-young (Presiding Justice)