[1] Whether there is a cause attributable to both parties for failure to perform the obligation to transfer ownership, in case where a consultation was made on both land subject to the exchange contract for public use and compensation of losses (affirmative)

[2] In a case where both parties to a bilateral contract become unable to perform all of their benefits, whether one of the parties can exercise the right to claim against the other party (negative)

[1] Unlike the case of land expropriation, a public project operator’s act of acquiring land necessary for the project through consultation in accordance with the Special Act on Compensation for Public Loss and Compensation for Losses, is not only a legal act conducted as a private economic entity, and its owner is not obligated to comply with the proposal for consultation. Therefore, if the two land subject to exchange contract was acquired through consultation with the executor of the public project after the commencement of each consultation in accordance with the Special Act on Compensation for Public Loss and Compensation for Losses, both parties cannot be readily concluded to have no cause attributable to the impossibility

[2] Even if one of the parties to a bilateral contract is entitled to exercise the other party's right to claim performance against the subject matter acquired as a result of an event in which the other party's performance is impossible, if one of the parties exercises the right to claim performance, he is obligated to perform the counter-performance to the other party. In this case, if the counter-performance of one of the parties is deemed to be impossible or a part of the counter-performance becomes impossible and the remaining remaining parts are not sufficient to achieve the other party's purpose of contract, etc., the other party cannot exercise the right to claim performance against the other party, unless there are special circumstances to deem that refusing the other party's claim is contrary

[1] Articles 390, 537, and 596 of the Civil Act; Article 2 subparag. 4 of the Special Act on the Compensation for Public Loss / [2] Articles 390 and 536 of the Civil Act

[1] Supreme Court Decision 91Da34394 delivered on October 13, 1992 (Gong1992, 3123), Supreme Court Decision 94Da25209 delivered on December 13, 1994 (Gong1995Sang, 480), Supreme Court Decision 95Da25497 delivered on October 13, 1995 (Gong1995Ha, 372) / [2] Supreme Court Decision 92Da4581, 4598 delivered on May 12, 1992 (Gong192, 1849), Supreme Court Decision 94Da2713 delivered on February 3, 195 (Gong195, 195Sang, 195), Supreme Court Decision 95Da25849 delivered on December 36, 195 (Gong195, 195)

Busan High Court Decision 201Na1446 delivered on May 1, 201

Defendant (Attorney Kim Jong-soo et al., Counsel for the defendant-appellant)

Daegu High Court Decision 94Na744 delivered on January 11, 1995

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

The grounds of appeal by the Plaintiff and his attorney Lee Jong-hee (to the extent of supplement in case of supplemental appellate briefs not timely filed by the attorney Lee Man-hee) are examined.

According to the reasoning of the judgment below, on December 19, 1986, the non-party, who was the vice-chairperson at the time of the Plaintiff’s clan Association, on behalf of the Defendant on December 19, 1986, entered into an agreement with the Defendant to exchange 195 square meters of forest land ( Address 1 omitted), 352 square meters of forest land ( Address 2 omitted), 80 square meters of forest land ( Address 63 omitted) and 263 square meters of road ( Address 1 omitted), and 630 square meters ( Address 4 omitted) owned by the Defendant to complete the registration of ownership transfer by December 31, 1986. However, as the non-party, who was the vice-chairperson at the time of the Plaintiff’s Religious Association, was transferred to the housing site development zone, and the Plaintiff agreed to complete the registration of ownership transfer on behalf of the Plaintiff, the lower court recognized that each of the above land was not subject to the Plaintiff’s obligation to complete the registration of ownership transfer on the premise that each of the above land was not subject to be transferred.

According to the records, the land No. 1 in this case owned the plaintiff's title trust to its affiliated members and the land No. 2 in this case owned by the defendant. The defendant concluded the land exchange contract to use the above land's access road to the land processing factory operated by the plaintiff. When both the land No. 1 and the land No. 2 were incorporated into the housing site development zone executed by the Korea Land Development Corporation, the defendant sold the above land No. 2 in consultation with the above corporation on August 16, 191 and completed the registration of ownership transfer as to the above land No. 2 in the above construction's name on August 19, 191, and immediately thereafter, the plaintiff sold the above land No. 1 in the name of some title trustees of the above land No. 1 in this case to the above corporation on Oct. 15, 1991 and completed the registration of ownership transfer as to the above land No. 1/16 in the name of the above corporation on Oct. 16, 191.

However, unlike the case of land expropriation, the executor of a public project is not obligated to comply with the proposal for consultation because it is merely a legal act conducted as a private economic entity as a private economic entity, unlike the case of land expropriation (see Supreme Court Decision 95Da25497 delivered on October 13, 1995). Thus, if the 5/6 shares and 2 shares of the land of this case were acquired through consultation pursuant to the above special law, the defendant cannot be deemed to be responsible for the failure to perform the obligation to transfer ownership to the above 2 land, and the plaintiff cannot be deemed to be responsible for the failure to perform the obligation to transfer ownership to the 5/6 shares of the above 1 land. Thus, the court below cannot be deemed to be erroneous because the above 1 and 2 land were acquired through consultation or expropriated in the above construction project. Thus, it cannot be deemed that the plaintiff and the defendant are not responsible for both the plaintiff and the defendant for each transfer of ownership based on the exchange contract of this case.

However, even if one of the parties to a family bilateral contract is entitled to exercise the other party's right to claim payment against the subject matter acquired as a result of the situation in which the other party's performance is impossible, one of the parties is obligated to perform the counter-performance in order to exercise the right to claim payment. In this case, if it is recognized that the counter-performance of one of the parties is impossible or part of the counter-performance is impossible, and that the other party's performance alone is not able to achieve the purpose of the other party's contract, the other party's refusal of the subject matter cannot exercise the right to claim against the other party unless there are special circumstances to see that the other party's refusal is contrary to the good faith principle.

In this case, there is no evidence to prove that the plaintiff's rejection of the plaintiff's claim against the plaintiff and the other party to the contract because both the land Nos. 1 and 2 which are the object of the above land exchange contract which are the object of the above land exchange contract had been acquired through consultation or expropriated by the executor of the public project, and the plaintiff's claim for the transfer of land ownership against the other party to the contract became impossible, and there is no special circumstance to deem that the defendant's rejection of the plaintiff's claim for the transfer of ownership on the land No. 2 under the above exchange contract is not possible as a result of the circumstance where the defendant's obligation to transfer ownership was impossible, and on the premise that the plaintiff could make the claim against the defendant, the plaintiff's claim for the return of the difference after deducting the amount the plaintiff received from the above construction due to the compensation for the land No. 2 which is the object of the above construction contract from the plaintiff's claim for the transfer of ownership against the defendant is proper in light of the factual basis of

In addition, in the above case, even if the compensation for the second land that the defendant agreed to move to the plaintiff according to the above exchange contract exceeds the compensation for the first land that the plaintiff agreed to move to the defendant, the defendant cannot be deemed to have benefit without any legal ground in relation to the plaintiff. The argument on this point is without merit.

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

Justices Lee Jae-soo (Presiding Justice)