(a) Where a contract may be rescinded for reasons of the other party's delay of performance even if the other party's performance of the obligation is not provided for in a bilateral contract;

(b) The base point for determining whether the other party is obviously unable to perform his/her obligation;

A. In a bilateral contract, where the other party expresses his intention not to perform the obligation in advance or where it is objectively apparent that the other party does not perform the obligation even if one of the parties provides performance, the other party is liable for the delay of performance and the contract may be rescinded for this reason, even if one of the parties provides performance. Even if one of the parties provides performance, it is objectively evident that the other party is unable to perform the obligation within a reasonable period of time, the other party may rescind the contract on the ground of the other party’s delay of performance.

B. In the case of Paragraph (a) above, whether it is obvious that the other party is unable to perform his obligation even if one of the parties provides performance shall be determined at the time of termination of the contract.

Article 544 of the Civil Act

A. Supreme Court Decision 90Da8374 delivered on March 27, 1991 (Gong1991, 1256) 91Da15584 delivered on February 28, 1992 (Gong1992, 1150) 92Da50805 delivered on February 23, 1993 (Gong193, 1076)

Plaintiff

Defendant Kim Sung-sung, Counsel for the defendant-appellant

Seoul High Court Decision 92Na19219 delivered on December 31, 1992

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

1. In light of the records, the fact-finding by the court below is acceptable, and there is no violation of the rules of evidence against the rules of evidence.

2. Determination as to whether performance of an obligation is impossible is based on the due date. Thus, if the building has not been completed by April 30, 191, which is the date of the pre-determined agreement pursuant to the sales contract of the building of this case, it cannot be deemed that the seller is physically unable to perform its obligation. However, the sales contract of this case is not the object of sale of the completed building, but the object of the sale of the building to be completed for the future construction of the defendant, and it can be deemed that the completion of the building of this case can be delayed than the agreed date at the time of conclusion of the contract. The parties' intent to conclude such a contract is somewhat delayed even if the completion of the building is completed by the agreed date unless there are special circumstances such as the failure to achieve the purpose of the contract, and it can be interpreted that the defendant agreed to clarify the completed building even if the completion of the construction cannot be completed by neglecting or abandoning the construction of the building. Thus, it cannot be said that the defendant merely completed the construction without delay and there is no delay in performance.

3. The judgment of the court below that the obligation to pay the remainder under the sales contract for the building of this case has a relationship of simultaneous performance with the obligation to specify the other party's obligation to cancel the contract on the ground of the other party's delay of performance in the bilateral contract with the relation of simultaneous performance, it is natural to set the reasonable period and put the other party into delay by peremptory notice.

However, in the case of a bilateral contract, where it is objectively apparent that the other party does not perform his/her obligation in advance or the other party does not perform his/her obligation even if one of the parties provides performance, the other party is liable for delay of performance and the contract may be rescinded for this reason even if one of the parties does not provide performance. Even if one of the parties provides performance, even if it is objectively evident that the other party is unable to perform his/her obligation within a reasonable period of time, the other party may rescind the contract on the ground of delay of performance.

In this case, if the other party can not put the other party into delay without providing his/her performance, it would result in compelling the provision of dance performance.

4. According to the facts acknowledged by the court below in this case, since the defendant was unable to complete the building of this case until April 30, 191, which was the agreed date, and completed the completion inspection after completion of the construction on June 27 of the same year, it is reasonable to view that it is objectively evident that the defendant is unable to perform the obligation to transfer and clarify ownership of the building of this case, which is his own debt, within the agreed date or within a reasonable period from that date, and if so, it is reasonable to view that the plaintiff as the purchaser could have rescinded the sales contract of this case on the ground of delay of performance by the defendant, even if he did not offer the remainder as his debt.

However, even in such a case, whether it is obvious that the other party is unable to perform his obligation should be determined on the basis of the time of termination. According to the facts recognized by the court below, it is 6.19. of the same year that the plaintiff declared the termination of the contract. This is close to June 27 of the same year that the defendant completed the construction of the building in this case and received the completion inspection, and it is difficult to recognize that the defendant is objectively unable to perform his obligation within a reasonable period at that time. In light of the close range of the period, if the plaintiff notified the other party of the performance prior to the declaration of the termination of the contract, the defendant would have the possibility of performing his original obligation after undergoing the completion inspection at the highest time or within a reasonable period of time. Thus, in this case where there is such circumstance, the validity of the termination of the contract can not be recognized immediately without the plaintiff's peremptory notice of performance or the provision of the performance.

Therefore, there is no reason to discuss.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Final Young-young (Presiding Justice)