Where a building buyer leases a third party with the consent of the seller without acquiring ownership, but the sales contract is terminated due to the buyer's default, whether the lessee's duty to specify the building and the duty to return the buyer's deposit to the third party are in a simultaneous performance relationship (negative)

In light of the fact that the buyer of a building leases the building to a third party with the consent of the seller without acquiring the ownership of the building, but if the seller cancels the sales contract due to the buyer's default and the seller seeks the order of the building to the lessee, the lessee is in the position of the sub-lessee of the building in relation to the seller. Therefore, if the lease contract is terminated due to the lessee's default, the lessee can not claim the lessor's right to the sub-contractor unless there are special circumstances, and even if the lessee acquired the right of lease directly to the object of the sales contract without the opposing power, the lessee's right to the lease can not be protected if the contract is terminated and the contract becomes terminated retroactively without the opposing power. In light of the fact that the lessee's duty to the name of the building and the obligation of the buyer to return the deposit money to the buyer is contrary to the principle of fairness.

Articles 536 and 630 of the Civil Act

Park al. and one other

The Korean Senior Dog-ro Association of Gwangju High White School

Gwangju District Court Decision 90Na574 delivered on June 29, 1990

The judgment below is reversed.

The case shall be remanded to the Panel Division of the Gwangju District Court.

According to the reasoning of the judgment of the court below, the court below recognized that the plaintiffs owned the building of this case and sold it to the last order and agreed to lease it to the defendant, and held that in this case, the plaintiffs cancelled the sales contract on the ground of the last order's default and requested the defendant to order the order of the building, the defendant's name of the building against the plaintiffs and the duty to return the lease deposit to the defendant to the last order of the lessor against the defendant should be placed in the simultaneous performance relationship

However, in the above facts, it shall be deemed that the highest order of the purchaser of a building has not yet acquired the ownership of the building and there is a claim right to use and benefit from the building against the plaintiffs, and the defendant who leased the building from the purchaser with the consent of the plaintiffs is in a relationship with the plaintiffs and the status of the sub-lessee of the building. Thus, if the lease contract is terminated due to the lessor's default, the sub-lessee can not claim the right of the sub-lessee as to the lessor unless there are special circumstances. Further, even if the defendant acquired the right of direct lease as to the object of the sale contract without the opposing power, the right can not be protected if the lease is terminated retroactively. Thus, it goes against the principle of fairness. Thus, the court below held that the above two obligations are in a simultaneous performance relationship, and therefore, the court below erred by misapprehending the legal principles on the right of defense of simultaneous performance, which affected the conclusion of the judgment.

The appeal is justified, and 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 Kim Yong-sung (Presiding Justice)