[1] Requirements for the sale and purchase of real estate to constitute "the sale and purchase designated by the quantity under Article 574 of the Civil Code"

[2] The case holding that if the parties to a sales contract agreed on the price of the target land as the most important factor among the factors determining the price of the land on the condition that the area of the land is identical to the indication in the public record, and if it is recognized that if the area was known in advance that it was different from the indication in the public record, the sale constitutes a sale with the quantity designated, and the sale is not different even if the sales contract did not state the price at ordinary level in the sales contract, or the seller did not state the price at ordinary level in the sales contract or the seller did not transfer the ownership of neighboring State to the buyer and did not have any agreement to transfer the right of reconstruction.

[1] In a real estate sale and purchase contract, the seller believed that there is a certain area, explicitly or implicitly indicates that there is such area, and furthermore, if the price is determined based on its objective value, it is the most important factor among the various factors that the parties to the contract determine the area, and if the price is determined based on its objective value, the specific amount has a certain quantity, and the price belongs to the case where the price is determined based on its quantity. Thus, it constitutes a "sale which designates the quantity" under Article 574

[2] The case holding that if the parties to a sales contract agreed on the price of the target land as the most important factor among the factors determining the price of the land on the condition that the area of the land is identical to the indication in the public record, and if it is recognized that if the area was known in advance that it was different from the indication in the public record, the sale constitutes a sale with the quantity designated, and the sale is not different even if the sales contract did not state the price at ordinary level in the sales contract, or the seller did not state the price at ordinary level in the sales contract or the seller did not transfer the ownership of neighboring State to the buyer and did not have any agreement to transfer the right of reconstruction.

[1] Article 574 of the Civil Code / [2] Article 574 of the Civil Code

[1] [2] Supreme Court Decision 92Da56674 delivered on June 25, 1993 (Gong1993Ha, 2104), Supreme Court Decision 95Da48780 delivered on April 9, 1996 (Gong1996Sang, 1387), Supreme Court Decision 98Da13914 delivered on June 26, 1998 (Gong198Ha, 196)

[Judgment of the court below]

Defendant

Gwangju High Court Decision 2000Na1913 delivered on January 11, 2001

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

We examine the Plaintiff’s ground of appeal.

1. Summary of the judgment below

A. The court below's summary of the facts that the parties did not have any dispute is as follows.

(1) On September 9, 1997, the Plaintiff concluded a real estate sales contract with the Defendant to purchase at KRW 250,000,00 the land and the above ( Address 1 omitted) land of KRW 938,326,000,000,000,000,000,000 ( Address 1 omitted), and the Plaintiff agreed to transfer the right of possession to the Plaintiff so that the Plaintiff can purchase the land of KRW 938,00,000,000,000,000,000,000,000,000,000,000,000.

(2) 원·피고는 1997. 10. 9.경 위 (주소 1 생략) 대 938㎡ 중 원심판결문 첨부 도면 표시 ㄱ, ㄴ, ㄷ, ㄹ, ㅁ, ㅂ, ㅅ, ㅌ, ㅋ, ㅊ, ㄱ의 각 점을 순차로 연결한 선내 가 부분 845㎡ 및 그 지상 건물과 위 (주소 2 생략) 전 3,326㎡ 중 같은 도면 표시 ㅁ, ㅂ, ㅅ, ㅌ, ㅁ2, ㄷ1, ㅁ의 각 점을 순차 연결한 선내 가 부분 111㎡를 매매목적물에서 제외하기로 합의하고, 그에 따라 매매대금을 금 150,000,000원으로 감액하였다.

(3) From September 9, 1997 to January 16, 1998, the Plaintiff paid the Defendant a total of KRW 146,00,000 in the purchase price.

(4) Subsequent to that, the number of 3,326 square meters and the number of 2,334 square meters prior to the foregoing ( Address 2 omitted) was combined with 5,660 square meters prior to June 23, 1998 ( Address 2 omitted).

(5) 그런데 1998년 7월경 위 (주소 2 생략) 전 5,660㎡를 측량한 결과, 위 (주소 2 생략) 토지 중 같은 도면 표시 ㅁ2, ㄹ1, ㅁ1, ㅂ1, ㅅ1, ㅇ1, ㅈ1, ㅊ1, ㅋ1, ㅌ1, ㅍ1, ㅎ1, ㄱ2, ㅍ3, ㅈ2, ㅇ2, ㅅ2, ㅂ2, ㅁ2의 각 점을 순차로 연결한 선내 다 부분(이하 '하천 편입부분'이라 한다) 1,452㎡가 하천법 소정의 하천으로 편입되어 있음이 밝혀졌다.

B. The judgment of the court below

The lower court rejected the Plaintiff’s determination of the above purchase price based on the annual average price of KRW 33,68,626 (=146,00-112,331,374) as to the Plaintiff’s claim for the return of the purchase price equivalent to the area of the said part of the river included in excess of the Defendant, on September 9, 1997 and around October 9 of the same year (the foregoing two contracts collectively referred to as “the instant purchase and sale contract”). The lower court rejected the Plaintiff’s claim for the sale and sale of the pertinent land, based on the following circumstances: (a) comprehensively taking into account the adopted evidence, the real estate size entered in the public record of the land at the time of the conclusion of the instant purchase and sale contract was entered; (b) the original and the Defendant’s land whose land category is 90,000 won per annum; and (c) the Plaintiff’s claim for the sale and sale of the pertinent land, and (d) the Plaintiff’s claim for the sale and sale of the pertinent land could not be determined within the sale and sale price per se.

2. Judgment of party members

However, the lower court’s rejection of the Plaintiff’s claim on the ground that the instant sales contract cannot be deemed as a sale designated by quantity is difficult.

According to the first instance court and the non-party 2's testimony that the plaintiff and the defendant sold 00 m20 m20 m20 m20 m20 m20 m20 m20 m20 m25 m20 m20 m20,000 10 m20 m25 m20,000 20 m20 10 m25 m20,000,000 10 m20 m20,000 m20 m20,000 10 m20,000 m20 m20,000 m20,000 m20,000 m20,000 m20,000 m20,000 m20,000 m2,00.

In the real estate sales contract, the purchaser believed that there exists a certain area, and the seller knew that there is the most important factor among the various factors to determine the price of the land. Furthermore, if the price is determined based on the objective figures, the price should also be determined based on such quantity (see, e.g., Supreme Court Decisions 95Da48780, Apr. 9, 196; 98Da13914, Jun. 26, 1998). In light of the above facts, two parties did not know that there was a lot of land under the premise that the size of the land for the purpose of the sale contract was indicated in the public record, and that there was no clear fact that there was no difference between the sale and purchase price of the land under the name of the Plaintiff at the time of the sale and purchase contract and the entire part of the land for which the Plaintiff did not have the right to purchase and sell the land under the same condition as the size of the land for the purpose of the sale and purchase contract at bar and there was no clear evidence to deem that the sale and purchase price of the land was no different.

Therefore, the court below's determination that the sales contract of this case was not a sale for the designated quantity, and rejected the plaintiff's claim for refund. The plaintiff's order for the execution of the procedure for ownership transfer registration of land for the purpose of the sales contract of this case and the repayment of the claim for delivery shall not be deemed to have committed an unlawful act that affected the conclusion of the judgment by misunderstanding the facts contrary to the rules of evidence. The ground of appeal pointing this out

3. Therefore, without examining the Plaintiff’s grounds of appeal on the grounds of rejection of judgment, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo-sung (Presiding Justice)