[1] In a case where the other party cancels the contract on the grounds of a party’s breach of contract, whether the party who violated the contract may claim the effect of termination (affirmative)

[2] Where a party clearly expresses in a bilateral contract that he/she had no intent to perform his/her obligation, whether the other party may rescind the bilateral contract without providing performance of his/her obligation or giving peremptory notice (affirmative)

[1] Articles 2, 545, and 548 of the Civil Act / [2] Articles 2 and 544 of the Civil Act

[1] Supreme Court Decision 2001Da21441, 21458 decided Jun. 29, 2001 (Gong2001Ha, 1735) / [2] Supreme Court Decision 93Da11821 decided Jun. 25, 1993 (Gong193Ha, 2111), Supreme Court Decision 2004Da53173 decided Aug. 19, 2005 (Gong2005Ha, 1498), Supreme Court Decision 2005Da6337 decided Sep. 20, 2007 (Gong2007Ha, 1626)

Plaintiff 1 and one other (Law Firm Dong-dong Partners, Attorneys Park Jae-jin, Counsel for the plaintiff-appellant)

Defendant (Attorney Jeong-hun et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2006Na1747 Decided July 19, 2007

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

The grounds of appeal are examined.

1. The cooking of evidence and the fact-finding based on it are within the discretionary power of the fact-finding court unless it violates the rule of experience or logic and goes beyond the bounds of the principle of free evaluation of evidence.

In addition, as long as the formation of a disposal document is recognized as authentic, the court shall recognize the existence and content of the expression of intent as stated in the disposal document, unless there is any clear and acceptable reflective evidence that denies the contents of the statement. In a case where there is any difference in the interpretation of a contract between the parties and the interpretation of the intent of the parties expressed in the disposal document is at issue, the court shall reasonably interpret the document in accordance with logical and empirical rules by comprehensively taking into account the contents of the text, the motive and circumstances leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (see, e.g., Supreme Court Decisions 2000Da48265, Feb. 26, 2002; 2002Da6753, Jun. 11, 2002).

According to the reasoning of the judgment below, the plaintiffs sold the real estate of this case to the non-party 1 on November 19, 197, and the non-party 2 corporation whose representative director is the representative director acquired the above contract purchaser status from the non-party 1 on March 30, 1998, and entered into the contract of this case with the plaintiffs on May 18, 1998. The contract of this case was concluded with the non-party 2 corporation for the purpose of newly constructing a rent apartment on the real estate of this case within 6 months from the date the new permission was obtained from the competent authority to preserve the right to claim ownership transfer registration of the non-party 2 corporation. Since the contract of this case was not entered into with the non-party 1 corporation on the non-party 1, the non-party 2 corporation and the defendant were not obligated to purchase the land of this case on the condition that the non-party 1 corporation did not purchase the land of this case on the condition that the non-party 2 corporation would not purchase the land of this case.

2. The right to cancel a contract is a kind of right of formation, where one of the parties expresses his/her intention to cancel a contract by reason of its effect, a new legal relationship occurs and each party is bound. Thus, in cases where the other party seeks to perform a contractual obligation under the premise that the contract remains in existence despite the other party’s declaration of intent to cancel a contract by reason of the other party’s breach of contract, the party who violated the contract may refuse the other party’s performance on the ground that the contract is extinguished by the other party’s rescission. Unless any other special circumstance exists, such assertion does not violate the principle of good faith or the principle of prohibition (see, e.g., Supreme Court Decisions 2001Da2141, 21458, Jun. 29, 201; 2001Da11821, Jun. 25, 1993; 2005Da37379, Mar. 37, 2005).

According to the above, although the plaintiffs are obligated to secure access land to the non-party 2 corporation under the contract of this case but failed to perform it, they notified the non-party 2 corporation of the purport that they cancel the contract of this case by asserting the non-party 2 corporation's default on November 9, 199. Furthermore, according to the records, the plaintiffs filed a lawsuit of this case claiming the cancellation of the provisional registration of this case against the non-party 2 corporation and the defendant on July 18, 2003, claiming the cancellation of the above contract and the cancellation of the provisional registration of this case. On May 2004, the non-party 2 corporation also filed a lawsuit for restitution and damages claim against the plaintiffs on the premise that the contract of this case was not provided for the non-party 2 corporation and the complaint was delivered to the plaintiffs around that time. In light of the above legal principles and records, the plaintiffs' notification of the cancellation of the contract of this case and the contract of this case cannot be viewed as being lawfully discharged as the contract of this case without the plaintiffs' intent to cancel the contract of this case and the contract of this case.

On the other hand, it is evident that the plaintiffs asserted that the contract of this case was cancelled by the delivery of a copy of the complaint of this case, such as restitution to the original state of non-party 2 corporation, as the cause of the claim of this case, in the briefs of November 1, 2004.

Nevertheless, the court below rejected the plaintiffs' claim without making any judgment on it, and there is an error of omission of judgment that affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

3. Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)