beta
Text
The judgment below
The part against the defendant is reversed, and that part of the case is remanded to the Daegu District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. Where the other party expresses his/her intention not to perform in advance in the event of the cancellation of a contract due to nonperformance, such as misunderstanding of legal principles as to the cancellation of a contract, the requirement for the cancellation of a contract is alleviated in comparison with the cancellation of a contract at the time of delay of performance (see Supreme Court Decision 92Da9463, Sept. 14, 1992). In order to recognize implied intention for the refusal of performance by taking into account all the following circumstances, the intention of refusal should be clearly acknowledged in light of the circumstances in order to recognize implied intention for the refusal of performance in addition to cases where the intention of refusal of performance is explicitly expressed.
(2) According to the reasoning of the lower judgment and the record, the Plaintiff: (a) purchased the instant apartment from the Defendant on October 2, 2014; and (b) entered into a special contract with the lessee to pay the remainder on December 2, 2014 and extend the remainder on a one-month basis (hereinafter “instant sales contract”); (c) the Plaintiff paid the down payment amount of KRW 25 million according to the instant sales contract; (d) the lessee was to be a director on January 7, 2015; and (e) the Plaintiff transferred KRW 20 million to the Defendant’s head of the Tong on the same day on the same day; and (e) the Defendant did not pay the remainder of the lease deposit to the Plaintiff up to December 2, 2015, which was extended on January 6, 2015.
Examining these facts in light of the legal principles as seen earlier, it is difficult to readily conclude that the Plaintiff clearly expressed his/her intention of refusal of performance solely on the grounds that the Plaintiff did not pay any balance by January 2, 2015.
Therefore, the defendant can lawfully rescind the sales contract of this case without providing the principal's obligation.