In the apartment sale contract, where the scheduled date for occupancy has arrived at when the buyer delayed the obligation to pay the intermediate payment, whether the seller is liable for delay from the time when the buyer performs the obligation to pay the intermediate payment (affirmative), and where there is a provision that the seller pays the intermediate payment already paid when the scheduled date for occupancy exceeds the scheduled date for occupancy under the apartment sale contract, whether the already paid intermediate payment refers to only the intermediate payment paid before the scheduled date for occupancy (negative)

In the apartment sales contract, which is an bilateral contract, where the scheduled date for occupancy has arrived without fulfilling the obligation to pay the part payments to be first performed by the buyer, barring any special circumstance, the obligation to pay the whole part payments to the buyer and the obligation to allow the buyer to take occupancy is in a simultaneous performance relationship, and the buyer is not liable for delay until the buyer pays the part payments in whole. However, if the buyer pays the part payments in whole, the buyer shall be liable for delay from that time, and if the buyer exceeds the scheduled date for occupancy under the apartment sales contract, he/she shall be liable for delay, and if there is a provision that the seller pays the part payments in part before the scheduled date for occupancy, barring any special circumstance, it shall not be deemed that the payment in part is only the part payments

Articles 387, 398, and 536 of the Civil Act; Article 6 of the Regulation of Standardized Contracts Act

Supreme Court Decision 96Da793, 7809, 7816 Decided February 10, 1998 (Gong1998Sang, 663) Supreme Court Decision 97Da54604, 54611 Decided March 13, 1998 (Gong198Sang, 1042)

Plaintiff 1 and 152 others (Attorneys Lee Im-soo, Counsel for the plaintiff-appellant)

Hanyang Co., Ltd. (Attorney Lee Jae-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 97Na10590 delivered on August 26, 1997

Of the judgment of the court below, the part related to part of the part concerning compensation for delay of Plaintiffs 10, 45, 50, 52, 76, 77, 81, 93, 125, 127, 134, and 152 is reversed, and this part of the case is remanded to the Seoul High Court. The remaining appeals by the above plaintiffs except for the remaining appeals by the above plaintiffs and the above plaintiffs are all dismissed. The costs of the appeal regarding the dismissed part shall be borne by the plaintiffs. The costs of appeal by the first instance court and the judgment of the court below shall be corrected to “Plaintiff 38” and “Plaintiff 100” on December 123.

1. The court below rejected the Plaintiffs’ delayed payment of part of the intermediate payment on or after September 12, 191 by adding the above part of the intermediate payment to Hanyang Co., Ltd. (hereinafter referred to as the “Seoul Co., Ltd.”) to the 193 scheduled date for occupancy; the Plaintiffs’ delayed payment of part of the intermediate payment to the 19% scheduled date for occupancy after the 193 scheduled date for occupancy; the Plaintiffs’ delayed payment of the intermediate payment to the 20% scheduled date for occupancy as stated in the attached Table 16 scheduled date for occupancy; the Plaintiffs’ delayed payment of part of the intermediate payment to the 190 scheduled date for occupancy; the Plaintiffs’ delayed payment of the intermediate payment to the 19% scheduled date for occupancy after the 196 scheduled date for occupancy; the Plaintiffs’ delayed payment of part of the intermediate payment to the 19% scheduled date for occupancy; the Plaintiffs’ delayed payment of the intermediate payment to the 19% scheduled date for occupancy (Article 10(1) of the Housing Supply Contract) and the 19% scheduled date for occupancy.

However, in the instant sales contract, which is a bilateral contract, if the scheduled date for occupancy has arrived without fulfilling the obligation to pay the intermediate payment that the buyer has to perform first, barring any special circumstance, the seller is not liable for delay until the buyer pays the intermediate payment in the simultaneous performance relationship and the buyer pays the intermediate payment in the whole (see Supreme Court Decision 96Da793, 7809, 7816, Feb. 10, 1998), and in this case, the seller shall be liable for delay from the time of the payment (see Supreme Court Decision 96Da793, 793, 7809, 7816, Feb. 10, 1998). Since there is no special circumstance to limit the "the intermediate payment subject to the calculation of compensation for delay under Article 10(2) of the above supply contract to the part payment paid before the scheduled date for occupancy, the reorganization company shall pay compensation for delay to the plaintiffs who have paid the part payment in whole after the scheduled date for occupancy.

Therefore, the court below's rejection of this part of the claim by Plaintiffs 10, 45, 50, 52, 76, 77, 81, 93, 125, 127, 134, 144, and 152, which paid all part of the intermediate payment before the scheduled occupancy date after the scheduled occupancy date, was erroneous in the misapprehension of the legal principles as to compensation for delay, and it is evident that this affected the conclusion of the judgment. Therefore, the ground of appeal on this point is with merit within the scope of the above recognition, and the remainder is without merit.

2. The court below's decision that Article 10 (2) of the Housing Supply Contract, excluding the down payment, cannot be seen as an unreasonably unfavorable provision to the customer under Article 6 of the Regulation of Standardized Contracts Act is proper, and there is no violation of law by misunderstanding the legal principles as argued in the Grounds for Appeal. Therefore, this ground for appeal shall not be accepted.

3. Therefore, among the judgment of the court below, the part concerning part payment among the part concerning compensation for delay of Plaintiffs 10, 45, 50, 52, 76, 77, 81, 93, 125, 127, 134, 144, and 152 concerning part payment is reversed, and this part of the case is remanded to the Seoul High Court. The remaining appeals by the above plaintiffs except for the remaining appeals by the above plaintiffs and the above plaintiffs are all dismissed, and the costs of the lawsuit shall be borne, and it is obvious that there are errors in the first instance court and the judgment of the court below, this is corrected and so it is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)