Plaintiff (Attorney Cho Young-do et al., Counsel for the plaintiff-appellant)

Defendant (public-service advocate Kim & Lee, et al., Counsel for the defendant-appellant)

August 16, 2006

Seoul Eastern District Court Decision 2004Kadan5750 decided June 28, 2005 (main office), 2004Kadan5750 decided June 28, 2005

1. Of the judgment of the court of first instance, the part concerning the principal claim is revoked, and the claim of the Plaintiff (Counterclaim Defendant) against the Defendant (Counterclaim Plaintiff) is dismissed, and the part against the Defendant (Counterclaim Plaintiff) that orders performance under the following among the parts concerning the counterclaim shall be revoked.

At the same time, the Plaintiff (Counterclaim Defendant) received KRW 53,300,000 from the Defendant (Counterclaim Plaintiff) and simultaneously implement the procedure for ownership transfer registration on November 20, 2000 square meters of forest land 9,900 square meters of forest land in Seosan-si (number omitted).

2. The remaining appeal regarding the counterclaim by the Defendant (Counterclaim Plaintiff) is dismissed.

3. Of the total litigation costs, 60% is borne by the Plaintiff (Counterclaim Defendant), and the remainder 40% is borne by the Defendant (Counterclaim Plaintiff) respectively.

1. Purport of the principal claim

On November 20, 2003, the Plaintiff (Counterclaim Defendant, hereinafter only referred to as the Plaintiff) and the Defendant (Counterclaim Plaintiff; hereinafter referred to as the Defendant) did not have the Plaintiff’s obligation to transfer ownership based on the sales contract concluded with respect to forest land 9,900 square meters in Seosan-si, Seosan-si.

2. Purport of the counterclaim and purport of appeal

The judgment of the court of first instance is revoked. The plaintiff's main claim is dismissed. The plaintiff shall execute the procedure for the registration of ownership transfer on November 20, 2003 with respect to the above real estate to the defendant.

1. Basic facts

The following facts are not disputed between the parties, or may be admitted in full view of the whole purport of the pleadings in Gap evidence 1, 2, 3, 7, Eul evidence 2, Eul evidence 3-1, and Eul evidence 3-2:

A. On November 20, 2003, the Plaintiff entered into a contract (hereinafter “instant contract”) with the following terms to sell 9,900 square meters of forest land (number omitted) in Seosan-si, Seosan-si, one’s own possession (hereinafter “instant land”).

(1) Sales amount: 90 million won;

(2) The down payment of KRW 10 million shall be paid at the time of the contract, and the intermediate payment of KRW 30 million shall be paid on December 3, 2003, and the remainder of KRW 50 million shall be paid on February 28, 2004.

(3) Special terms: (a) the Defendant, the buyer, shall pay interest on the balance from the date on which the documents for transfer of name were received (300,000 won). (b) The amount set up (i) the amount, e.g., the collateral obligation of Nonparty 1, registered on March 31, 2003 with respect to the land of this case, the buyer shall succeed to the Defendant, the buyer.

B. The Plaintiff received the down payment of KRW 10 million from the Defendant on the day of concluding the instant sales contract, and the intermediate payment of KRW 30 million on December 3, 2003, respectively.

C. On December 9, 2003, the Plaintiff sent to Nonparty 3 all documents, such as the power of attorney, certificate of personal seal impression for sale (However, according to the Defendant’s designation, the purchaser’s mother stated the name as Nonparty 2), certificate of right for registration, and certificate of resident registration, etc. necessary for the registration of ownership transfer of the instant land.

2. Determination

A. Summary of the plaintiff's assertion

The plaintiff asserted that, on February 28, 2004, the plaintiff did not pay the balance of KRW 50 million to the non-party 1, who is a collective security right holder, until February 28, 2004, and the plaintiff did not pay the balance over several times, and the plaintiff did not pay it, and the plaintiff expressed his intention of rescission by serving a copy of the complaint of this case on the ground of the defendant's default. Thus, although the contract of this case was lawfully rescinded, although the defendant neglected to pay the debt to the non-party 1 and neglected to pay the debt to the non-party 1, the voluntary auction procedure of this case was commenced upon the application of the non-party 1, who was a collective security holder, and the plaintiff paid all the debt to the non-party 1 and auction expenses to prevent the progress, the contract of this case was lawfully rescinded, and the defendant argued that the non-party 1 will cancel the auction contract by demanding the payment of the debt, and that he did not cancel the auction contract for the reason of non-party 1's refusal.

B. As to the Defendant’s cancellation on the ground of the Defendant’s failure to pay the remainder

(1) In a case where a purchaser made an agreement in lieu of the payment of the purchase price with regard to taking over the secured obligation of the right to collateral security on the subject matter of the sale, the buyer cannot be construed as bearing the obligation to pay the purchase price, and barring any special circumstance, the buyer paid the remainder after deducting the amount of the obligation from the purchase price. However, barring any special circumstance, the buyer shall be deemed to have fulfilled the obligation to pay the balance by paying the purchase price. However, barring any special agreement as to the time for the performance of the obligation to take over the obligation, it shall be deemed sufficient if the buyer performs the obligation in accordance with the original content of the obligation to take over (see Supreme Court Decision 98Da251

(2) According to the above facts, while the plaintiff and the defendant set the time to pay the remainder of KRW 50 million in the sales contract of this case on February 28, 2004, the plaintiff and the defendant agreed to succeed to the secured debt of the non-party 1 under a special contract. Whether February 28, 2004, which is the due date of the remainder under the sales contract of this case, set the buyer's acquisition of the debt of KRW 50 million, and (b) further, on February 28, 2004, did not comply with the payment time of the remainder that the defendant would have to pay to the plaintiff, i.e., whether the defendant failed to comply with the obligation to pay the remainder.

(3) The facts of recognition as above, Gap evidence Nos. 1 and 13-3 and 4 comprehensively consider the overall purport of the pleadings, the following circumstances are set out in the sales contract of this case as of February 28, 2004, the payment date of the remainder of 50 million won is set as of February 28, 2004, the plaintiff expecting the defendant to pay the remainder of 50 million won to the plaintiff himself or non-party 1 until February 28, 2004, and the defendant did not inform the non-party 1 that he will take over the secured debt of the right to collateral payment until the payment date of the remainder, and the defendant did not inform the non-party 1 of the contact with the non-party 1 (the non-party 1 was aware that the defendant had to succeed to the secured debt of the right to collateral security payment of this case on March 27, 2004, and it was reasonable to view that the defendant applied for a provisional disposition of this case as of February 20, 2004.

(4) There is no dispute between the parties that the Defendant did not pay KRW 50 million to Nonparty 1 until February 28, 2004. Furthermore, whether February 28, 2004 set the payment date of the remainder that the Defendant would pay to the Plaintiff, and the Defendant’s non-compliance with the obligation that the Defendant did not comply is the Defendant’s default, which is the cause for rescission of the instant sales contract.

그러므로 살피건대, ㉮ 이 사건 토지를 매도한 원고는, 피고로부터 계약금과 중도금을 합한 4,000만 원을 지급받음으로써, 피고로부터 현실로 지급받아야 할 매매대금은 모두 받은 점, ㉯ 매매잔금의 액수와 소외 1에 대한 채무 액수가 같아, 실제 잔금 지급일에 원고가 피고로부터 지급받을 돈이 없는 점, ㉰ 원고도 이러한 입장에서, 법무사에게 소유권이전등기에 필요한 제반 서류를 맡겨 놓아, 자신의 소유권이전등기의무를 모두 이행하였던 점, ㉱ 설령 피고가 2004. 2. 28.까지 인수채무 5,000만 원을 변제하지 않고 다소 그 기한을 어기더라도, 채권자인 소외 1에게 채무원리금을 모두 변제하면, 이 사건 토지에 설정된 근저당권을 말소할 수 있는 점, ㉲ 원고가 소유권이전등기에 필요한 서류를 모두 제공한 이후에는, 소외 1에 대한 채무의 이자를 피고가 부담하기로 약정한 점, ㉳ 수사기관에서 원고가 한 진술에 의하면, 원고도 피고가 2004. 8.경까지 소외 1에게 채무원리금을 모두 변제하였으면 소유권이전등기를 해 주었을 것이라고 진술하고 있는 점(갑 제13호증의 3) 등을 종합하여 보면, 이 사건 매매계약에서 정한 2004. 2. 28.은 피고가 원고에게 잔금을 지급할 기일을 정한 것이라고는 볼 수 없다.

In addition, in order to cancel a contract on the ground of non-performance of obligation under Article 544 of the Civil Code, the contract shall not be rescinded unless the obligation in question is necessary for accomplishing the purpose of the contract, and if the purpose of the contract is not fulfilled, it shall be the principal obligation to the extent that the creditor would not have concluded the contract, and the contract shall not be rescinded unless it is merely for the non-performance of incidental obligation.

In light of the above facts, it cannot be said that the obligation that the defendant agreed to pay the debt to Nonparty 1 until February 28, 2004 cannot be deemed as having been necessary to achieve the purpose of the instant sales contract, and it cannot be deemed as an incidental obligation. Thus, even if the defendant did not pay the debt to Nonparty 1 by February 28, 2004, the instant sales contract cannot be rescinded solely on the basis of this fact, even if the defendant did not pay the debt to Nonparty 1 by February 28, 2004.

(5) Ultimately, the Plaintiff’s claim for rescission of the contract based on the Defendant’s delay in payment of the remainder is groundless without any further need.

C. As to the cancellation on the Defendant’s non-performance of acceptance obligation

(1) As seen above, the Defendant cannot rescind a contract solely on the ground that he did not repay his obligation to Nonparty 1 by the date of February 28, 2004. However, in addition to other circumstances, whether the Defendant’s nonperformance of obligation to accept the instant contract may be separate issues. In other words, in the instant case, the Plaintiff neglected to perform his obligation to Nonparty 1, and continues to assert the circumstance that the Defendant neglected to perform his obligation to Nonparty 1, and the voluntary auction procedure for the instant land was commenced upon Nonparty 1’s application, and that the Plaintiff paid his obligation to Nonparty 1 and auction expenses, etc. to prevent the proceeding. However, it is examined whether the instant contract can be rescinded on the grounds of such circumstances.

(2) In a case where the buyer has agreed to accept the collateral obligation on the subject matter of sale in lieu of the payment of the purchase price, the right to cancel the contract shall accrue to the seller, only when there are special reasons that can be deemed the same as the buyer’s failure to pay part of the purchase price by delaying the performance of the undertaking obligation.

(3) In the instant case, we examine whether there is any reason to evaluate that the Defendant’s repayment of the obligation to accept is identical to that of the payment of the purchase price by delaying the performance of the obligation to accept.

First of all, the fact that the defendant did not pay 50 million won to the non-party 1 until February 28, 2004 under the initial agreement is as seen above.

In addition, considering the overall purport of arguments as to Gap evidence 4, Gap evidence 5-1, Eul evidence 5-2, Eul evidence 6-1, 2, Eul evidence 13-5, Eul evidence 13-7, Eul evidence 13, Eul evidence 13, the plaintiff, defendant, and non-party 1 discussed about the issue of repayment of debts against non-party 1 only in Yaridong, Jongno-gu, Seoul around July 2004. The defendant suggested that the non-party 1 would not pay interest only, but the non-party 1 would have refused to do so. The non-party 1 filed an application for voluntary auction of this case on its own basis after the non-party 1, and the non-party 1 would not have completed the registration of the non-party 2's auction of this case on the non-party 1, the non-party 2's non-party 1's non-party 1's non-party 4's non-party 2's non-party 1's non-party 1's non-party 1's non-party 2.

In full view of the above circumstances, the Defendant neglected to perform his/her obligation to Nonparty 1, and the auction procedure for the instant land commences, and further, the Plaintiff’s repayment of the principal and interest of obligation to Nonparty 1 is the same as the Defendant’s payment of the principal and interest of the instant sales contract to Nonparty 1. Therefore, the Defendant’s nonperformance of obligation to the Plaintiff constitutes grounds for rescinding the instant sales contract.

(4) On the other hand, the defendant asserts that the plaintiff did not provide his duty to transfer ownership, and therefore, the plaintiff's rescission of the contract of this case is legitimate.

As in this case, even if the seller acquired the right to cancel the sales contract for the buyer's default of the buyer's obligation, the seller must perform the obligation to transfer ownership or offer the opposite contractual obligation when the seller gives notice of cancellation (see Supreme Court Decision 92Da23193 delivered on February 12, 1993).

Furthermore, comprehensively taking account of the overall purport of arguments as to this case, Article 55 of the former Enforcement Rule of the Registration of Real Estate Act (amended by Supreme Court Regulation No. 2025 of May 30, 2006), the term of validity of the certificate of personal seal impression issued by the Plaintiff to a certified judicial scrivener on December 9, 2003 expires on June 9, 2004, and thus, the Defendant requires a new certificate of personal seal impression for completing the registration of ownership transfer, and the Plaintiff failed to comply with the request of the Plaintiff for the provision of new certificate of personal seal impression to the Plaintiff after the request. However, even though the Plaintiff requested that the Plaintiff provide the Plaintiff with a new certificate of personal seal impression, the Plaintiff did not comply with the request for the payment of debt to Nonparty 1 and the Plaintiff did not comply with the request (the Plaintiff stated in the investigative agency that, if the Defendant dealt with the balance by no later than August 204, 204, it is difficult to view that the Plaintiff voluntarily received the transfer of ownership from Nonparty 1 to the Defendant.

With regard to the issuance of a certificate of personal seal impression, after the decision of voluntary auction on July 15, 2004 was issued with respect to the instant case, the Plaintiff asserted to the effect that the Plaintiff was not required to provide for the Plaintiff in cancelling the contract because, “after the decision of voluntary auction was made, the Defendant gave the Plaintiff a loan of KRW 100 million from the water cooperative located in Seosan as security, which was issued with a certificate of personal seal impression.” This was the Plaintiff’s prior performance and the Defendant urged the Plaintiff to pay excessive debts. However, even if the Defendant offered the above demand, it is merely a presentation of the method of repayment of the acquisition obligation, and even according to the original sales contract of this case, the obligation of the Plaintiff’s transfer of ownership and the obligation of the Defendant’s repayment of the obligation to pay the secured debt to the Defendant was not concurrently performed. Accordingly, it cannot be viewed that the Plaintiff’s proposal was made by the Defendant and the Defendant urged the Defendant to pay excessive debts to the Plaintiff. Accordingly, this part of the Plaintiff’s assertion is rejected.

Ultimately, the cancellation of the instant sales contract made by the Plaintiff on the ground of the Defendant’s nonperformance of obligation (including not only the cancellation, but also the Plaintiff filed the instant lawsuit on October 22, 2004, prior to the repayment of obligation to Nonparty 1).

D. As to the cancellation on the ground of non-performance

Finally, the plaintiff argued that the defendant expressed his intention to apply for auction when he met the non-party 1 on July 2004, and that the non-party 1 would apply for the repayment of the debt. However, the above statement made by the defendant to the non-party 1 is merely a kind of spitation which is made in an emotionally after being aware of each other in order to repay the secured debt of the right to collateral security at the time of the time. In particular, considering the overall purport of the arguments in each statement in Eul evidence 6, 8, 9, Eul evidence 13, and evidence 13-5, the defendant expressed his intention to pay the principal and interest of the secured debt of the right to collateral security by telephone to the non-party 1 on October 26, 2004, and in light of the fact that the defendant prepared the above secured debt of 50 million won, it is difficult to recognize that the non-party 1 had the intent to pay the above secured debt.

Therefore, we cannot accept the plaintiff's claim for rescission of contract on the ground of non-performance.

E. As to the plaintiff's duty to transfer ownership

(1) If so, the Plaintiff’s assertion on the cancellation of the instant sales contract is without merit, and barring any special circumstance, the Plaintiff is obligated to implement the registration procedure for transfer of ownership on the instant land to the Defendant upon the Defendant’s counterclaim.

(2) However, in a case where the buyer agreed to accept the collateral obligation of the right to collateral security on the subject matter of sale in lieu of the payment of the purchase price, the buyer’s obligation was substituted for the payment of the purchase price, and where the seller paid the buyer’s obligation in lieu of or on behalf of the buyer due to the buyer’s default on the buyer’s obligation, the liability for compensation or indemnity arising therefrom is converted into the buyer’s obligation in lieu of the payment of the purchase price, and thus, the buyer’s obligation for compensation or indemnity and the seller’s obligation for transfer of ownership are deemed to be in a quid pro quo relationship, and thus both are deemed to be in

According to the evidence No. 6-1 and No. 2, the plaintiff paid the secured debt of the right to collateral security established on the land of this case, and paid 53 million won to the non-party 1 on October 26, 2004, including the principal and interest of the secured debt of the right to collateral security and the execution cost, and 300,000 won for cancellation of the right to collateral security on October 27, 2004, respectively, to cancel the registration of the establishment of the right to collateral security. Thus, the defendant is obligated to pay 53,30,000 won in total to the plaintiff as damages or indemnity, and such obligation of the defendant is related to the simultaneous performance of the obligation of the plaintiff.

(3) Accordingly, the Plaintiff is obligated to pay KRW 53,300,000 from the Defendant at the same time, and to implement the registration procedure for transfer of ownership based on the instant sales contract for the instant land.

3. Conclusion

Therefore, the plaintiff's claim of the principal lawsuit is dismissed as it is without merit, and the defendant's claim of the counterclaim is accepted within the scope of the above recognition, and the defendant's remaining counterclaim is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the part of the judgment of the court of first instance concerning the principal lawsuit is revoked, and the plaintiff's claim against the defendant is dismissed, and the part against the defendant which the plaintiff's obligation is recognized among the part concerning the subordinate counterclaim is revoked, the plaintiff is ordered to perform his obligation, and the remaining appeal against the defendant's counterclaim is dismissed as it is so decided as per Disposition.

Judges Park Young-chul (Presiding Judge)