In the instant sales contract, the requirements for the rescission of the contract are not proved.

Since the requirements for the right of rescission in the sales contract of this case are not proved, each claim against the Defendants on the premise that the requirements for the right of rescission are satisfied are not reasonable.

Article 47 of the National Tax Collection Act: Effect of Attachment of Real Estate

Incheon District Court-2017-Ban-246288 ( October 15, 2019)

Note ○○ ○○ ○○○

○○ and 4 others

2019.24

October 15, 2019

1. The plaintiff's claims against the defendants are all dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

Cheong-gu Office

1. At the time of receiving KRW 63,00,000 from the Plaintiff, the Defendant Sam-gu △△△△△△△△ corporation (hereinafter referred to as the “△△△△△△△”), the Plaintiff shall carry out the procedure for the registration of cancellation of the registration of the right to claim transfer of ownership, which was completed by the head of the Incheon District Court No. 2 △△△△△△△△ on April 6, 2012, with regard to the real estate indicated in attached Table 1

2. Defendant Dae-○○○, Defendant ○○, Defendant ○○, Defendant Kim○, and Defendant vice-○○○, as to the instant real estate, expressed their intention of each acceptance on the cancellation registration of provisional registration of the right to claim ownership transfer registration under paragraph (1) which was completed with respect to the instant real estate.

1. Basic facts

A. On March 2012, the Plaintiff and Defendant Samsan concluded a sales contract with the sales amount of KRW 135,00,000 for the share of KRW 11/13 of the instant real estate (hereinafter “instant sales contract”) (hereinafter “instant sales contract”).

B. The registration of the instant real estate was completed under the name of the Plaintiff and the Defendants as follows.

① 2005. 5. 26. 원고 명의의 소유권이전등기(인천지방법원 등기국 2005. 5. 26. 접수 제4◆◆◆◆호, 등기원인: 2005. 4. 15.자 매매)

(2) On April 6, 2012, the provisional registration of the right to claim ownership transfer in the name of 33 Doumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumumum

③ 2014. 10. 24. 이 사건 가등기에 관한 대○○○ 명의의 압류등기(인천지방법원 등기국 2014. 10. 24. 접수 제7◆◆◆◆호, 등기원인: 2014. 10. 21.자 압류)

④ 2014. 12. 24. 이 사건 가등기에 관한 김○○(청구금액 7,612,949원), 최○○(청구금액 10,349,063원) 명의의 이 사건 가등기에 관한 가압류 등기(인천지방법원 등기국 2014. 12. 24. 접수 제9◆◆◆◆호, 등기원인 2014. 12. 12.자 2014카단1◆◆◆◆ 가압류 결정)

⑤ 2015. 7. 27. 이 사건 가등기에 관한 인천광역시 부○○ 명의의 압류등기(인천지방법원 등기국 2015. 7. 27. 접수 제6◆◆◆◆호, 등기원인 2015. 7. 27.자 압류)

다. 피고 삼●●●는 2014. 12. 9. 원고를 상대로 하여 이 사건 부동산 중 11/13 지분에 관한 소유권이전등기절차의 이행을 구하는 소를 인천지방법원에 제기하였고(사건번호: 인천지방법원 2014가단2◆◆◆◆◆호), 위 사건에 관하여 2015. 10. 17. 별지2 기재(생략)와 같은 내용의 조정을 갈음하는 결정이 확정되었다(이하 위 조정결정을 '관련 조정결정'이라 하고, 그 조항을 '관련 조정조항'이라 한다).

[Ground for Recognition: Facts without dispute, entry of Gap evidence 1 through 6, significant facts in this court, purport of the whole pleadings]

2. The parties' assertion

A. The plaintiff's assertion

The plaintiff's assertion is as stated in the grounds for the claim as shown in the attached Table 3 (Omission of), and the summary of the claim was " Dou Doudong, Dou-gu, the defendant, was unable to perform the contract because it failed to perform the relevant adjustment clause 1 and 2, and the plaintiff inevitably cancelled the contract of this case, so the defendant Samsan Dou-gu, the defendant Samsan, the plaintiff, shall implement the procedure for the cancellation registration of the provisional registration of this case, and the remaining defendants shall express their intent

B. Summary of the defendants' assertion

Since the instant sales contract cannot be deemed to have been rescinded, the Plaintiff’s claim premised on the rescission of the instant sales contract shall be dismissed.

3. Determination

(a) Whether to cancel it for reasons of impossibility of performance;

1) In light of the empirical rules or the concept of transaction in a social life, whether it is impossible for an obligee to perform the obligation, the obligee is unable to expect the obligor to perform the obligation, and the obligee must prove the impossibility of performing the obligation (see, e.g., Supreme Court Decision 2013Da207538, Dec. 10, 2015).

2) We examine in light of the above legal principles.

A) First of all, the content of the instant conciliation clause clause is that Do○○○○○○○○, a sum of KRW 12,00,000,00, shall be paid to the Plaintiff by December 31, 2015. Therefore, it is difficult to think that such simple monetary payment obligation has been performed not by delay of performance, but by social norms, and there is no evidence to acknowledge such exception. Meanwhile, in full view of the overall arguments in the statement in subparagraph 3 and 9-2, it is difficult to conclude that Do○○○○○○○○○○○○ was to transfer KRW 12,00,000,000 as stated in the conciliation clause to the Plaintiff on August 11, 2017, and it is difficult to conclude that the Plaintiff refused to receive the payment of the money in question in light of the content-certified document (the entire content is omitted) and the evidence presented by the Plaintiff on August 27, 2017.

B) Next, in relation to the part of the instant conciliation provision’s part, as examined in the following B(1), it cannot be deemed that the above conciliation provision’s provision is a provision imposing an obligation on the Defendant 3 Dou. Dou. Dou. Dou., and even if the cancellation of the registration of seizure is referred to as the “ obligation to cancel the registration of seizure” as alleged by the Plaintiff, the cancellation of the registration of seizure does not seem to significantly differ from the obligation to pay money to the execution creditor upon the payment of money to the execution creditor. Therefore, it is difficult to view that the submitted evidence alone does not constitute a “performance of obligation to cancel

(b) Whether a contract is rescinded for the delay of performance under related conciliation provisions(1);

1) We first examine the Plaintiff’s claim for rescission as a result of delay of the Plaintiff’s claim and first examine the claim for rescission on the ground of nonperformance of obligations under the relevant conciliation clause(1). The content of the relevant conciliation clause(1) is as follows, “Defendant” means the Plaintiff of the instant case, and “Plaintiff” in the language and text refers to Dosan-gu, Defendant 3 in the instant case.

2) In light of the meaning of the language and text of the instant conciliation clause, rather than imposing the obligation on the Defendant Samsan-gu, in the instant case, the instant conciliation clause constitutes a provision that grants the Plaintiff the right to refuse to perform the obligation of the ownership transfer registration procedure by the time a specific condition arises.

3) Therefore, it is reasonable to deem that the Plaintiff could not cancel the sales contract of this case on the ground that the Do○○○○○○○ violated the above adjustment clause clause, and even if the Defendant ○○○○○○○○○ violated the above adjustment clause, it cannot be deemed that the Plaintiff satisfied the requirements for the cancellation of the contract, as examined below (C). Thus, the Plaintiff’s exercise of the right to cancel the contract based on the violation of the above adjustment clause cannot be accepted in this respect.

C. Whether the cancellation is made on the ground of the violation of the relevant conciliation clause(2)

In addition, the plaintiff's argument is arranged as the cause of rescission due to the delay of performance, and the claim of rescission on the ground of the non-performance of the relevant mediation clause(2) is also examined.

1) The content of the relevant adjustment clause(2) and whether the right to automatically cancel under the said clause has arisen

A) The content of the relevant adjustment clause clause(2) is that “The Defendant shall pay KRW 12,00,000 to the Plaintiff by December 31, 2015.”

B) However, there is no provision that the contract may be rescinded without the content or peremptory notice that the right of automatic rescission may arise to the Plaintiff in the event of the violation of the foregoing paragraph (2). Thus, in order to cancel the contract on the ground of the nonperformance of the obligation made by the Plaintiff, the requirements of “the peremptory notice of performance over a reasonable period of time” and “non-performance within that period of time” should be satisfied in accordance with Article 544(2) of the Civil Act.

2) Whether contract termination requirements are met

A) According to the statement in Gap evidence No. 7, it can be acknowledged that the plaintiff sent the document stating the highest notice of the performance of the contract and the declaration of intent of cancellation at the time of non-performance of the contract on June 19, 2017 to the defendant Dou-gu, Dou

B) However, according to the statement No. 9-1 of A, it may be recognized that the above content-certified mail has not arrived at Dou Dou-gu, the defendant, and there is no other evidence to prove that the plaintiff's maximum expression of intent for performance has reached the defendant.

C) Meanwhile, the Plaintiff asserted that he/she had expressed his/her intent to cancel the contract through the service of the duplicate of the instant complaint. However, the duplicate of the instant complaint does not fully state the highest notice of performance as alleged by the Plaintiff. In addition, on August 11, 2017, 2017, the date before the instant lawsuit was filed, the Defendant Dour Dour Dour Dour Dour Doum, which is the Defendant, attempted to transfer the amount of KRW 12 million as stated in the conciliation clause to the Plaintiff. The Plaintiff’s contact address and account number are notified to the Plaintiff. The Plaintiff sent a document (the entire content is the same as written in four pages), as seen earlier, and the fact that the Plaintiff received the instant mail on August 17, 2017 is apparent that the fact that the instant lawsuit was filed on October 13, 2017, and there is no evidence to acknowledge that the Plaintiff had given the highest notice of performance between the above two parties, and the Plaintiff’s declaration of intent to discharge through the instant complaint cannot be seen from the above.

D. Sub-determination

Ultimately, since the requirements for the rescission of the sales contract of this case are not proved, each claim against the Defendants, which is premised on the fulfillment of the requirements for the rescission, is without merit.

4. Conclusion

All of the Plaintiff’s claims against the Defendants are dismissed.

1) The total contract amount of the instant real estate was KRW 155,00,000, or the registration of ownership transfer was completed with respect to the share of KRW 2/13 of the instant real estate in the name of Nonparty 2/13. The Plaintiff is the Plaintiff that the amount equivalent to the share of the re-owned ship, the registration of ownership transfer of which was completed, is KRW 20,000,000. The Defendant Samsan △△△ was not clearly disputing the amount, and thus, the price was calculated by excluding the said amount.

2) If one of the parties has failed to perform an obligation under Article 544 (Performance Delay and Rescission) of the Civil Act, the other party shall demand such performance with a reasonable time fixed and may rescind the contract if it has not been performed within that time limit. However, if the obligor has expressed in advance its intention of non-performance, a peremptory notice is not required.