In the sales contract of the number of lots which can achieve the purpose of the contract by allowing the change of the name of the buyer in the name of the buyer, where the buyer refuses the buyer's acceptance without justifiable reasons even though the buyer notified the buyer to take over the procedure for change of the name of the buyer after the seller prepared documents, etc. necessary for change of the name of the buyer, the person who bears the expenses for preservation of the object which occurred thereafter

Article 568 of the Civil Act

[Plaintiff-Appellant] Plaintiff 2006Da44401 decided Nov. 23, 2006 (Gong2007Sang, 38)

Plaintiff (Law Firm L&A, Attorneys Choi Ho-ho et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Samyang, Attorneys Noh Jeong-soo et al., Counsel for the defendant-appellant)

Busan High Court Decision 2009Na12931 decided May 13, 2010

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

The grounds of appeal are examined.

1. On the first ground for appeal

The lower court acknowledged the circumstances as indicated in its reasoning based on the adopted evidence, and rejected the Defendant’s claim for cancellation of contract, on the ground that the Nonparty’s statement that the Nonparty was the same as the Nonparty actually occupied the instant real estate, cannot be deemed as having a duty to actually move into the instant real estate, and solely on the fact that the Nonparty sold the instant sales right to the Plaintiff cannot be deemed to have violated the capital gains tax-related agreement.

In light of the relevant legal principles and records, the judgment of the court below is just, and it is not erroneous in the misapprehension of legal principles as to the cancellation of a sales contract or in the violation of the rules of evidence.

2. On the second ground for appeal

A. According to the records, with respect to the claim of this case for which the plaintiff seeks the implementation of the procedure for change in the ownership of the buyer on behalf of the non-party, it is evident that the defendant has a defense that his obligation against the non-party as to the above part of the intermediate payment and interest thereon was paid by the non-party at the same time.

Therefore, the court below should have deliberated and judged whether the non-party is liable to pay the above intermediate payment, etc. to the defendant and whether it is in a simultaneous performance relationship with the defendant's obligation. However, the defendant did not assert the defendant, namely, the reason why the defendant was ordered to pay the above intermediate payment of KRW 468,030,00 in total and to pay the above intermediate payment of KRW 1,2,30,000 in return for the above intermediate payment of KRW 468,00 in total and to implement the above procedure for change of name. In this case, the court below erred

B. In addition, the lower court rejected the Defendant’s assertion that the Nonparty (the first instance court seems to have misunderstood that the Defendant alleged as the Plaintiff regarding this part) is liable to pay the Defendant the amount equivalent to the interest on the remainder of the loans except the interest on the first and second intermediate payments that the Defendant incurred by Hyundai Industrial Development Co., Ltd. among the interest on the intermediate payments that the Defendant borrowed to pay the purchase price of the instant real estate, and that the payment is in simultaneous performance relationship, on the grounds that the said intermediate payments are the costs incurred by the Defendant in performing his/her obligations, and that the said intermediate payments are the costs incurred by the Defendant in performing his/her obligations, and that there was no special agreement that the purchaser of the instant sales right bears the burden, but such determination by the lower court cannot be accepted

Since the main purpose of a sales contract which forms the object of a sale and purchase right is to have a buyer acquire the ownership of the object based on the right of sale, a seller is obligated to have a buyer acquire the ownership of the object based on the right of sale. However, if a buyer permits a change of the name of a buyer in the name of a buyer and thereby can achieve the purpose of a sales contract by changing the name of a buyer in the name of a buyer, a seller is obligated to perform his/her obligations if he/she performs the procedure for change of the name of a buyer (see Supreme Court Decision 2006Da44401, Nov. 23, 2006).

Therefore, if the buyer refuses to take over the object without justifiable reasons after the seller prepared documents necessary for the change of name and notified the buyer to take over the procedure for the change of name of the buyer, the buyer should bear the expenses incurred for the preservation of the object thereafter.

According to the records, in the content-certified mail sent to the non-party on September 5, 2008, when it is possible to change the name of the buyer, the non-party asserted that the non-party refused to take over the procedure of change of the buyer's name from March 25, 2008 to five times. In such a case, the court below should have determined whether the non-party refused to take over the procedure of change of the buyer's name, and after examining whether the non-party refused to take over the procedure of change of the buyer's name, the court below should have determined whether the non-party refused to take over the above part-time payment without any justifiable reason. However, without examining this point, the court below erred by misapprehending the legal principles on the creditor's body and failing to exhaust all necessary deliberations, and the grounds for appeal pointing this out are with merit.

C. Meanwhile, the court below rejected the Defendant’s assertion that the Nonparty shall return to the Defendant the amount equivalent to the loans 4, 5, and 6 times which have not yet been implemented among the above loans, and the interest on such loans shall also be returned to the Defendant by simultaneous performance, on the grounds that, with respect to the principal of the loans, if the intermediate payment has not yet been paid due to the above loans, and the payment of the amount equivalent to the above loans and the procedure for changing the name of the buyer is deemed to be in a simultaneous performance relationship, the Nonparty would in fact compel the Nonparty to preferentially perform the above intermediate payment, but there is no ground to recognize it, and rejected

In light of the relevant legal principles and records, the lower court’s rejection of the Defendant’s above assertion is justified, and it did not err by misapprehending the legal principles on concurrent performance defense as otherwise alleged in the ground of appeal.

3. Conclusion

Therefore, 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 Lee Sang-hoon (Presiding Justice)