[1] Peremptory notice of performance demanding excessive performance in excess of the amount of debt and the effect of termination of a contract based on such demand

[2] Whether the court shall decide whether to grant the application for resumption of pleading (negative)

[3] The nature of the assumption of an obligation where a purchaser of a real estate takes over a secured obligation of a collateral on the subject matter of sale, and where the purchaser has agreed to deduct the amount of debt from the purchase price, whether the purchaser is liable to pay the balance after deducting the amount of debt from the purchase price (affirmative)

[4] Whether the seller may rescind the sales contract on the ground that the buyer who takes over the secured obligation of the right to collateral security regarding the subject matter of sale neglects to perform his/her obligation, thereby commencing the auction procedure for the subject matter of sale and the seller discharges the secured obligation to prevent the progress of the auction procedure (affirmative)

[5] In a case where a performance contract was entered into with a real estate sales contract, whether the buyer's obligation of acceptance and the buyer's obligation of compensation for damages or the obligation of indemnity due to the buyer's voluntary performance is concurrently performed with the seller's obligation of registration of transfer of ownership

[1] Even in cases where the obligee’s demand for performance exceeds the amount of the original obligation, if the difference between the amount to be paid and the amount to be paid is relatively small or excessive to the obligee, or the obligee knew about the amount to be paid and excessive to the obligee, and thus the obligee claims the original payment, such demand shall be valid within the scope of the amount to be paid. However, if the obligee’s demand is obvious that the excessive amount is obvious and that the obligee would not receive it, the demand is unlawful and the rescission of the contract based on such demand shall not be effective.

[2] The application for the resumption of a pleading is only meaningful to urge the court to leave the court's authority, and the issue of the resumption of a pleading is a matter of official authority of the court and there is no need to decide whether to grant permission or not, and there is no obligation to resume the pleading.

[3] In a case where the purchaser of a real estate takes over the secured obligation of the right to collateral security regarding the subject matter of sale and, in the event that there is an agreement to deduct the amount of such obligation from the purchase price, such agreement shall be deemed an acquisition rather than a seller’s assumption of obligation, and unless there is any other special agreement, it shall not be interpreted that the purchaser bears the obligation to actually pay the said obligation, and barring any special circumstance, the purchaser shall be deemed to have fulfilled the obligation to pay the

[4] In a case where a buyer who takes over the secured obligation of the right to collateral security regarding the subject matter of sale neglects to pay the secured obligation of the right to collateral security, which is a part of the obligation taken over, and thereby a seller commences a voluntary auction procedure with respect to the subject matter of sale by exercising the right to collateral security and pays the secured obligation in order to prevent the progress of the auction procedure, the seller may rescind the sales contract for the reason other

[5] In a case where a performance contract was entered into with a real estate sales contract, if a buyer's obligation was substituted for a payment obligation of the purchase price, and the seller pays the buyer's obligation of acceptance or the buyer's obligation of acceptance on behalf of the buyer, then the buyer's liability of compensation or the obligation of indemnity arising therefrom is converted into a change of a buyer's obligation of acceptance in lieu of a payment obligation of the purchase price, and thus, the buyer's obligation of compensation or indemnity and the obligation of transfer registration of the seller's ownership is deemed to be in a performance-related relationship, and therefore, both are reasonable in terms of equity

[1] Article 544 of the Civil Code/ [2] Article 142 of the Civil Procedure Act/ [3] Article 454 of the Civil Code/ [4] Article 544 of the Civil Code/ [5] Article 536 of the Civil Code

[1] Supreme Court Decision 89Meu34022 delivered on June 26, 1990 (Gong1990, 1573) 93Da47615 delivered on May 10, 1994 (Gong1994Sang, 1650), Supreme Court Decision 94Da54894 delivered on September 15, 1995 (Gong1995Ha, 3378 Delivered on October 28, 1994) 2] Supreme Court Decision 94Da39253 Delivered on September 29, 197 (Gong1994Ha, 3124) 297Da2979 delivered on September 18, 198 (Gong197Ha, 194Ha, 3124) / [2] Supreme Court Decision 97Da39794 delivered on September 29, 195

Plaintiff (Law Firm Law, Attorney Yoon Jong-sung et al., Counsel for the plaintiff-appellant)

New Environment Development Co., Ltd. (Law Firm Squa, Attorneys Park Han-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na76280 delivered on January 30, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. Even in cases where the obligee’s demand for performance exceeds the amount of the original obligation, if the difference between the amount to be paid and the amount to be paid is relatively small or excessive to the obligee, or the obligee made excessive peremptory notice with the knowledge of the amount to be paid and the obligee claims for the original payment, such peremptory notice shall be valid within the extent of the amount to be paid, but where it is obvious that the obligee would not receive it if the obligee’s demand is remarkably excessive and the obligee would not provide the amount to be claimed, the peremptory notice is unlawful and the rescission of the contract based on such peremptory notice is not effective (see, e.g., Supreme Court Decisions 93Da47615, May 10, 1994; 94Da54894, Sept. 15, 1995).

The court below rejected the plaintiff's remainder payment of KRW 1.6 billion for the reason that on November 7, 2001, the plaintiff entered into a sales contract with the defendant to purchase KRW 4,537.5m2 and above-ground shopping center building (hereinafter "real estate of this case") with KRW 9.15 billion and the contract deposit and intermediate payment of KRW 1.65 billion to the defendant. The court below rejected the plaintiff's remainder payment of KRW 4 billion for the reason that the plaintiff did not pay the remainder of the contract deposit and the intermediate payment of KRW 1.6 billion to the National Agricultural Cooperative Federation, which is the collateral obligation of the right to collateral security, to pay the remainder of KRW 2.65 billion with the transfer registration document. The court below rejected the defendant's remainder payment of the contract deposit and the intermediate payment of KRW 2.0 billion for the reason that the plaintiff did not pay the remainder of the contract deposit to the plaintiff within 2.0 billion without deducting the remainder of the contract deposit and the intermediate payment payment of the National Agricultural Cooperative Federation.

In light of the process of the litigation in this case and the fact that the defendant notified the payment of the remainder on November 26, 2002, immediately after the judgment of the court of first instance ordering the plaintiff to implement the procedure for the registration of ownership transfer of the real estate in repayment of the payment of the loan to the National Agricultural Cooperative Federation (including the loan repayment to the National Agricultural Cooperative Federation that the plaintiff agreed to accept, and the contents of the contract are not merely demanding the payment of the balance, but it is decided to pay the balance as the purchase price in cash without mentioning any balance as to the loan repayment obligations to the National Agricultural Cooperative Federation, the defendant's above maximum performance notice is unlawful because it constitutes an excessive highest demand for payment of KRW 6.365 million, including the loan repayment obligations to the National Agricultural Cooperative Federation. Accordingly, the fact-finding and judgment of the court below are justified and there is no error of law by misunderstanding the facts against the rules of evidence or misunderstanding the legal principles on the cancellation of the contract or the repayment of the contract.

Supreme Court Decision 2002Da23482 Decided June 28, 2002 cited in the ground of appeal by the defendant is not appropriate to be invoked in this case, with different cases.

2. The application for the resumption of the oral argument is only meaningful to urge the court to leave the oral argument. The issue of the resumption of the oral argument is an ex officio matter of the court and there is no need to decide whether to grant permission or not, and it is not a duty to resume the oral argument to the court on the ground that the application for the resumption of the oral argument has been filed (see Supreme Court Decision 94Da39253 delivered on October 28, 1994, Supreme Court Decision 97Da52141 delivered on September 18, 198, etc.). Thus, even if the court below rejected the application for the resumption of the oral argument as alleged in the ground of appeal, it cannot be said that it constitutes an

3. In a case where the purchaser of a real estate takes over the secured obligation of the right to collateral security regarding the subject matter of sale and, in the event that there is an agreement to deduct the amount of such obligation from the purchase price, it shall be deemed that the buyer takes over the obligation, instead of taking over the obligation to exempt the seller, and barring any special circumstance, the buyer cannot be construed as having fulfilled the obligation to pay the remainder after deducting the amount of obligation from the purchase price. In addition, in a case where the buyer neglected to pay the secured obligation of the right to collateral security, which is part of the assignee’s obligation, and the seller takes place a voluntary auction procedure with regard to the subject matter of sale and pays the secured obligation to prevent the progress of the auction procedure, the seller may cancel the sale contract on this ground, in addition to the acquisition of the right to collateral security from the assignee, and if the performance contract was concluded with the real estate sale contract, the buyer takes over the obligation in lieu of the buyer’s obligation to pay the purchase price, and if it is deemed that the seller bears the obligation to pay damages or indemnity in lieu of the buyer’s obligation to pay damages.

According to the records, the plaintiff takes over the repayment obligation of 4 billion won against the National Agricultural Cooperative Federation, which is a collateral obligation of the right to collateral security on the real estate of this case, while the agreement to deduct the amount of the debt from the purchase price does not exist to prove that the creditor gave consent or agreed to give special exemption from the obligation, and thus, the plaintiff cannot be interpreted as bearing the obligation of repayment, and unless there are special circumstances, the plaintiff is liable to pay the remainder after deducting the amount of the debt from the purchase price. In the case of this case where the acquisition of the obligation to repay the loan of this case is merely an acceptance of the obligation to pay the loan of this case, the plaintiff cannot be deemed as bearing the obligation to pay the amount of the debt of this case to the plaintiff. In addition, if the plaintiff's voluntary auction commences or commences through the execution of the right to collateral security on the real estate of this case, and the defendant's obligation to compensate for damages and the defendant's obligation to pay the loan of this case and the defendant's obligation to pay the loan of this case on behalf of the plaintiff, there is no evidence that the plaintiff's obligation of simultaneous auction.

In the same purport, it is proper that the court below determined that the plaintiff's remaining payment obligation of the same relation with the defendant's obligation to implement the procedure for the registration of ownership transfer of the real estate of this case is limited to KRW 2.365 million after deducting the plaintiff's obligation to repay the loan to the National Agricultural Cooperative Federation, and there is no error of law by misunderstanding the legal principles as to

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-chul (Presiding Justice)