In a bilateral contract, the method of determining whether one of the parties has expressed his/her intent not to perform his/her obligation in advance, and the requirements for recognizing that the purchaser had expressed his/her intent not to perform the obligation explicitly / Whether the purchaser explicitly expressed his/her intent not to perform his/her obligation on the sole basis of a request for the postponement of payment of the remaining purchase

Article 544 of the Civil Act

Supreme Court Decision 90Meu23882 Decided November 13, 1990 (Gong1991, 88) Supreme Court Decision 97Da30257 Decided November 28, 1997 (Gong1998Sang, 74) Supreme Court Decision 2004Da22971 Decided November 9, 2006 (Gong201Sang, 558) Decided February 10, 201 (Gong201Sang, 558)

[Judgment of the court below]

Defendant (Attorney Lee Il-il, Counsel for defendant-appellant)

Daejeon District Court Decision 2019Na103032 Decided September 26, 2019

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

The grounds of appeal are examined.

1. The court below held that the seller of the contract of this case including the defendant et al. may rescind the contract of this case 2 contracts of this case without the need to provide the opposite duty for the performance of the obligation for the registration of transfer of ownership, and the contract of this case 2 contracts of this case was cancelled as long as the contract of this case 2 contracts of this case was cancelled as the contract of this case 2 contracts of this case.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. Generally, when one of the parties expressed his/her intention not to perform his/her own obligation in advance, the other party may rescind a bilateral contract without demanding performance or providing for his/her own obligation. However, such expression of intention should be determined by comprehensively examining the parties’ behavior and specific circumstances before and after the contract (see, e.g., Supreme Court Decisions 97Da30257, Nov. 28, 1997; 2010Da77385, Feb. 10, 201). The contract termination recognized in cases where the other party expressed his/her intention not to perform the contract in advance is alleviated when compared with the other party’s highest and simultaneous performance with the other party’s intention not to perform his/her obligation, and thus, the other party clearly expressed his/her intention not to perform the contract at the time of the contract or the contract, and thus, the other party’s intention not to perform the contract should be deemed to have expressed his/her intention of refusal clearly to recognize the seller’s intention not to perform the contract at the expiration of 1970.

B. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, there is a variety of evidence to deem that the Plaintiff’s intention not to perform the Plaintiff’s obligation under the instant contract 2 is clear and not a final expression.

C. Nevertheless, solely based on its stated reasoning, the court below erred by misapprehending the legal principles as to the rescission of a contract due to the refusal of performance, thereby failing to exhaust all necessary deliberations as to the party’s behavior and the specific circumstances before and after the contract and whether to provide counter-performance. The ground of appeal on this point is with merit.

D. Meanwhile, in light of the circumstances such as the instant contract on the land 1, the developments leading up to the conclusion of the instant two contracts on the land 2 and 3, the location and use of each of the instant land, and the method and time for the determination of each purchase price, etc., it is sufficient to deem that each of the parties to the instant contract including the Plaintiff and the Defendant, etc., agreed to handle the same as each of the parties to the instant contract. Thus, if the Plaintiff neglected to perform the obligations such as the payment of the balance under the instant two contracts, even if the Plaintiff completed the performance of the obligations under the instant one contract, it shall be pointed out that the right to rescind the instant one may arise

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-hee (Presiding Justice)