(a) The legal nature and effect of assumption of an obligation where the purchaser of a real estate has agreed to take over the obligation regarding the subject matter of sale and deduct the amount of such obligation from the purchase price;

B. Whether the seller can rescind the sales contract solely on the ground that the buyer did not actually perform his/her obligations he/she assumed over the subject matter of the sale

(c) In the case of “B”, the case denying the validity of the seller’s rescission of the sales contract;

A. In a case where the buyer of a real estate agrees to take over the obligation regarding the subject matter of sale and deduct the amount of such obligation from the purchase price, such acceptance shall, barring any special circumstance, be deemed an assumption of obligation, rather than an assumption of obligation, and in order to consider it as an assumption of obligation with respect to the subject matter of sale, the consent of

(b) In the case of “A”, the buyer is not liable for the actual repayment of the obligation assumed at the time of the sales contract, and barring any special circumstance, the buyer is obligated to pay the remainder after deducting the obligation from the sales price. Therefore, even if the purchaser did not actually pay the said obligation, the seller cannot rescind the sales contract, and there is a right to cancel the contract in special circumstances to evaluate that the buyer’s failure to pay part of the sales price is the same as the buyer’s failure to pay part of the sales price.

C. In a case where a real estate buyer took over the seller's obligation to return the leased deposit, the case holding that the seller's exercise of the right to rescission of a sales contract without a seller's fulfillment of his/her obligation is invalid, on the sole basis of the fact that the buyer has not fulfilled his/her obligation to cancel the sales contract, where the seller returned the leased deposit of the previous lessee with the money received by re-leaseing the object to a third party, not his/her own contribution, and the buyer demanded the return of the amount equivalent to the leased deposit, but the buyer has failed to pay the amount equivalent to the leased deposit but the buyer has cancelled the sales contract.

(a) Article 454 of the Civil Act;

A. Supreme Court Decision 92Da23193 delivered on February 12, 1993 (Gong1993Sang, 962), Supreme Court Decision 94Da2190 delivered on May 13, 1994 (Gong1994Sang, 1682), Supreme Court Decision 93Da19108 delivered on June 29, 1993 (Gong1993Ha, 2141)

Plaintiff 1 and 2 others, Counsel for the defendant-appellant-appellee

Defendant Kim Tae-tae, Counsel for the defendant-appellant

Daegu District Court Decision 93Na15326 delivered on October 26, 1994

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

1. We examine the first ground for appeal.

The judgment of the court below on the fact that the plaintiff 3's claim against the defendant was pointed out (the claim against the plaintiff 3 was set off against the plaintiff's claim for the purchase price against the above plaintiff due to the sales contract of this case) is justifiable in light of the evidence relation as stated by the court below, and there is no error in the misapprehension of legal principles as to the contradiction of reason or set-off, such as the theory of lawsuit, and it cannot be said that there is no error in the misapprehension of legal principles as to the process. The court below's action is not erroneous solely on the ground that the registration of the establishment of a collateral against

2. We examine the grounds of appeal Nos. 2, 3, and 4.

According to the reasoning of the judgment below, on July 3, 1984, the court below held that, notwithstanding the fact that the plaintiffs and four persons, including the plaintiff and the non-party 1 (hereinafter referred to as "the plaintiff et al.") did not pay 29,770,000 won a total amount of the principal and interest on the plaintiff et al. to "the site of this case" from the defendant on July 3, 1984, and the 3rd floor 4th floor of cement brick slives (hereinafter referred to as "the building of this case") among 258,250,000 square meters of the building of this case and 11.71/8, which correspond to the above multi-party building of this case (hereinafter referred to as "the building of this case"), the plaintiff et al. purchased 52,00,000 won a rent of the above 20,000 won, the plaintiff et al. did not have any effect on the plaintiff's repayment of the deposit to the non-party 2.

However, in cases where the purchaser of the above real estate agreed to deduct the amount of the obligation from the purchase price, such acquisition shall be deemed not to have assumed the obligation of the seller, unless there are special circumstances (see Supreme Court Decisions 8Da29467, Jan. 25, 1990; 92Da23193, Feb. 12, 1993; 94Da2190, May 13, 1994). According to the reasoning of the judgment below, it is difficult for the court below to find out that there was an obligee’s consent to the above transfer of the obligation of the Plaintiff at the time of presentation of the above sale contract, and it is hard to find that the court below erred in the misapprehension of the legal principle as to the acquisition of the obligation of the Plaintiff at the time of the above 20-party 1’s offering of the above 3-party 1’s testimony and the acquisition of the obligation of the Plaintiff at the time of delivery of the above 4-party 1’s testimony.

However, barring any special circumstance, the buyer does not practically assume the obligation to repay the obligation he/she takes over at the time of the sales contract, and barring any special circumstance, the buyer performed the obligation to pay the balance by paying the remainder after deducting the amount of the obligation from the sales price. Thus, even if the purchaser did not actually pay the said obligation, such circumstance alone does not lead to the seller’s rescission of the sales contract (see Supreme Court Decision 93Da19108, Jun. 29, 1993). In addition, there is a special reason to evaluate that the buyer’s failure to perform the obligation is identical to the failure to pay part of the sales price

According to the records (e.g., evidence Nos. 21-1 and 2), since the defendant returned the above deposit to the above non-party Nos. 2 on May 8, 1993 and demanded the return of the deposit to the plaintiff, etc., but the above money was not paid. However, according to the following: (i) whether the above fact can be seen as a special circumstance that can be evaluated as not fulfilling the obligation to pay the purchase price; (ii) whether the plaintiff et al. failed to perform the obligation to pay the purchase price; (iii) the defendant did not first demand the return of the deposit to the plaintiff et al. during the proceeding of the lawsuit in this case, and (iv) the defendant could not be deemed to have fulfilled the obligation to pay the deposit money to the above non-party Nos. 32; and (iv) the defendant cannot be deemed to have fulfilled the obligation to pay the deposit money to the above non-party No. 2 without any reason that the plaintiff et al. failed to pay the deposit money to the plaintiff Nos. 2 at the time of the contract in this case.

3. Accordingly, 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 on the bench.

Justices Ahn Yong-sik (Presiding Justice)