The degree of a seller of real estate on which the right to collateral security was established

In a real estate sales contract for which the right to collateral security is established, the documents required for ownership transfer registration and the issuance of documents required for the procedure for registration of cancellation of collateral security and payment of the purchase price are simultaneously performed unless there are special circumstances

Article 536 of the Civil Act

Supreme Court Decision 65Da1367 delivered on September 7, 1965 (Kaod 1648; Supreme Court Decision 13BDo132 Decided September 7, 1965; Supreme Court Decision 536(18)440 of the Civil Act

Plaintiff

Defendant

Seoul Central District Court (67Da7762) in the first instance trial (Supreme Court Decision 67Da762)

The original judgment shall be revoked.

The plaintiff's claim is dismissed.

All the costs of lawsuit shall be borne by the plaintiff in the first and second instances.

The defendant's attorney shall implement the procedure for cancellation registration of transfer of ownership on September 28, 1961 for the plaintiff's registration of cancellation of transfer of ownership on September 26, 19731 as the Seongbuk-gu Seoul Metropolitan Government Sungbukbuk District Court's receipt of Sungbuk Branch on September 28, 1961 as to the 31st 7th 21th 7th YY.

The court costs are assessed against the defendant.

The defendant's attorney is seeking the same judgment as the disposition.

(1) On August 30, 1961, the Plaintiff sold the volume of 25,970 square meters of forest land (number 2 omitted) in Seongbuk-gu, Seoul Special Metropolitan City (number 2 omitted) 25,970 square meters of forest land to the Defendant at 2,300,000 square meters of the price. After measuring the above parts in installments, the Plaintiff entered into a contract with Nonparty 1, the Defendant’s agent, which is the contract to measure the above parts and confirm the number of square meters. On the same day, Nonparty 1 was issued with the number of shares per 2,30,000 square meters of the face value on October 15, 1961. The Plaintiff actually divided the above parts of forest land into 7,00 square meters and 3,000 square meters of forest land (number 1 omitted) and issued all necessary documents for the registration of ownership transfer to the Defendant, and there is no dispute between the parties.

As to the plaintiff's assertion that the nature of the contract of this case entered into between the plaintiff and the non-party 1 is the sale and purchase, the defendant is only the form thereof, and in substance, the legal problem was raised against the plaintiff's non-party 3's property at the time of the above contract, but the defendant offered real estate as a bribe to the defendant who was in office as the highest committee member at the time of the highest committee's meeting with the knowledge that the defendant would purchase the forest and field as a bribe, and thus, the plaintiff argued that the contract constitutes illegal consideration. As such, since there is no dispute over the above facts that there is no dispute over the contract, it can be recognized that the contract of this case was a sale formed by the plaintiff's agreement to transfer the above subject matter of sale to the defendant, and that the other party's payment was made by the defendant, and there is no evidence to prove otherwise.

In this case, the plaintiff and the defendant who are the party to the sales contract must perform their obligations under the contract. The plaintiff asserted that the above contract had been rescinded since the defendant did not perform its obligations under the above contract, and that the payment date of the original contract was October 15, 1961. Thus, since the number of shares issued for the payment of the purchase price did not pass an approval even after the above payment date exceeded the above payment date, the plaintiff notified the non-party 1 to pay the above purchase price two times on August 30, 1963, and the plaintiff notified the non-party 1 to pay the above purchase price twice on September 17, 1963. The above contract was terminated on July 7, 1967 by declaring that the above contract was rescinded and terminated. In light of the nature of the above contract, the plaintiff's rescission of the contract by paying the above collateral obligation to the defendant and delivered a certificate of termination of the contract to the defendant, and thus, the contract cannot be seen to the effect that the contract was completely cancelled between the plaintiff and the above non-party 1.

In light of the purport of a party’s pleading, if the facts established above are together together with the purport of the party’s pleading, it can be recognized that the contract was a bilateral contract, and according to the record of Gap’s evidence No. 1, which has no dispute over the establishment of the contract, it can be recognized that the physical collateral was established by a mortgage contract with the maximum debt amount of the non-party 4 corporation on October 14, 1959 and the Korean commercial bank as the creditor, and the mortgage amount of two million won is established on the 20th of the same month.

As such, it is reasonable to view that a real estate sales contract for which the right to collateral security has been established has concurrent performance relations with the documents required for registration of cancellation of the right to collateral security, as well as the issuance of documents required for registration of cancellation of the right to collateral security and payment of the purchase price (see Supreme Court Decision 65Da1367 delivered on September 7, 1965), barring special circumstances (see Supreme Court Decision 65Da1367 delivered on September 7, 1965). In comparison with the testimony of the court below and the witness non-party 1, it cannot be recognized that there are special circumstances as agreed upon the execution of the obligation to cancel the purchase price as advance payment rather than the obligation to register cancellation of the right to collateral security. Thus, it is clear that the plaintiff's obligation to cancel the right to collateral security and the defendant's obligation to pay the purchase price in accordance with the above legal reasoning. Furthermore, according to the testimony of the witness non-party 1, who is known to the plaintiff and non-party 1, the defendant's agent, the right of collateral security can be recognized after approval.

Therefore, as to whether the plaintiff's duty to cancel the right to collateral security was the provision of performance at the time of termination of the contract by the plaintiff's principal, it is not sufficient to recognize this fact with only the statement of health room, evidence Nos. 7 (Evidence) and evidence Nos. 8 (Evidence) and the testimony by the non-party No. 5 of the above witness, and there is no other sufficient evidence to prove that the defendant's obligation to cancel the right to collateral security was delayed payment.

In this case, the defendant's expression of intent to cancel the contract of this case on the ground that the defendant did not fulfill the obligation to pay the price is invalid.

The plaintiff asserts that the simultaneous performance of the defendant's right of defense is unfair because it goes against the original part of equity and the new part of the defendant's right of defense, since six years have passed since the defendant had completed the registration of ownership transfer and received the delivery of the object. However, it cannot be concluded that the defendant's right of defense of simultaneous performance goes against the original part of equity or the new part of the defendant's right of defense, and it cannot be accepted because the plaintiff's right of defense of simultaneous performance goes against the original part of equity.

In other words, even if the Plaintiff’s nonperformance of the obligation to cancel the right to collateral security, the Defendant took profits from the Defendant’s use of the forest as the owner of the forest in question for a long time, and thus, the Plaintiff’s nonperformance of obligation is cured. However, there is no legal doctrine that can readily conclude that the Plaintiff’s nonperformance of obligation is cured as it is only such fact, and there

(2) In the same way, the plaintiff's claim for the principal lawsuit on the premise that the sales contract was lawfully rescinded shall be dismissed without adding any judgment on the remainder of the lawsuit, and the original judgment with a different purport is unfair, so the original judgment is to be revoked by Article 386 of the Civil Procedure Act, and it is so decided as per Disposition by applying Articles 96 and 89 of the same Act with respect to the bearing of the costs of lawsuit.

Judges Noh Jeong-hee (Presiding Judge)