(a) Where the purpose of the defense system for simultaneous performance and each obligation borne by the parties is not an inherent quid pro quo relationship in the bilateral contract, but a defense for simultaneous performance can be acknowledged;

B. The case reversing the judgment of the court below which held that the obligation to pay capital gains tax and the obligation to transfer ownership registration cannot be deemed to be concurrently implemented, even though there was an agreement between the purchaser and the seller to pay capital gains tax, if it was agreed that the purchaser bears the burden of transfer income tax, there was an error in the misapprehension of legal principles concerning the right

A. The right to defense of simultaneous performance is a system that recognizes the relation between each party's obligations on the basis of the concept of fairness and good faith and allows the other party to refuse the other party to perform his/her obligations if the other party's obligations are requested to discharge his/her obligations without performing the other party's obligations or not providing the other party's obligations. In light of the purport of this system, even if each obligation to be borne by the party is not in a bilateral contract, the right to defense of simultaneous performance can be acknowledged if it is meaningful in light of the content of the agreement on the obligation to be borne by each party in a specific contractual relationship, and there is a circumstance to recognize the relation of performance.

B. The case reversing the judgment of the court below which held that the seller's obligation to pay the transfer income tax and the seller's obligation to pay the transfer income tax cannot be deemed to be a concurrent performance relationship with the buyer, even though it was judged whether there was an agreement between the parties as to the form, method, and timing of providing performance to bear the transfer income tax amount, and that the seller's obligation to pay the transfer income tax and the seller's obligation to pay the transfer income tax should not be deemed to be related to the buyer's obligation to pay the transfer income tax.

A.B. Article 536 of the Civil Procedure Act. Article 183 of the Civil Procedure Act

B. Supreme Court Decision 90Meu27471 Decided May 28, 1991 (Gong1991, 1749)

Attorney Lee Jae-soo, Counsel for plaintiff-appellant

Defendant

Busan High Court Decision 91Na1905 delivered on August 1, 1991

The judgment below is reversed, and the case is remanded to Busan High Court.

We examine the grounds of appeal.

1. According to the reasoning of the judgment below, the court below rejected the defendant's assertion that the plaintiff's above obligation to pay capital gains tax and the defendant's obligation to transfer income tax on the purchase of the land of this case, such as the land of this case which the plaintiff originally borne by the defendant [No. 110,104,923 won in aggregate of capital gains tax on the land of this case and the land of this case (No. 3 omitted), since the plaintiff agreed to pay capital gains tax on the land of this case (No. 224.9 square meters) and no. 171.6 square meters (No. 3 omitted) and no. 224.7 square meters) to the plaintiff's new obligation to pay capital gains tax, as long as the plaintiff's obligation to pay capital gains tax and the defendant's obligation to transfer income tax on the simultaneous performance relation, the plaintiff's aforementioned obligation to pay capital gains tax on the land of this case cannot be asserted as the defendant's objection to simultaneous performance of the plaintiff's obligation to pay capital gains tax on the above concurrent performance relation.

2. In light of the record, the court below's rejection of the Defendant's prior performance defense is just and there is no error in the misapprehension of legal principles as to the mistake of facts or prior performance due to violating the rules of evidence, such as the theory of lawsuit, and therefore there is no ground to charge this error.

3. Next, the court below's rejection of the defendant's simultaneous performance defense is a system that recognizes the relation of counter-performance when each party's obligation is related with each other's obligation on the basis of the concept of fairness and the good faith principle, and allows either party to refuse the performance of one party's obligation when the other party's obligation is claimed for the performance of one party's obligation without performing the other party's obligation or not providing the other party's obligation. In light of the purport of the system, even if each obligation borne by the party is not in a bilateral contract's own quid pro quo relationship, the party's defense of simultaneous performance can be acknowledged in the event that the parties' obligation is not in a special quid pro quo relationship in accordance with the terms of the agreement on the obligation to be borne by each party under the specific contract.

Therefore, the court below should have determined whether there was an agreement between the parties on the form, method, timing, etc. of providing performance to bear the amount of capital gains tax according to the Defendant’s transfer of land in the contract between the Plaintiff and the Defendant, and if the Plaintiff had agreed on the form, method, and time, etc. of offering the performance to be borne by the Plaintiff, and should have determined whether there was a relation with the Defendant’s obligation to transfer ownership to the said land. However, even if there was no special circumstance, barring any special circumstance, the court below determined that the Plaintiff did not have a relation with the above obligation to transfer ownership to the said land simultaneously with the obligation to pay the capital gains tax, thereby affecting the conclusion of the judgment by misapprehending the legal principles on the right to defense of simultaneous performance, failing to exhaust all

Therefore, the judgment of the court below is reversed and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices.

Justices Choi Jae-ho (Presiding Justice)