[1] The meaning of the right to defense of simultaneous performance

[2] The case holding that in case where a seller bears an obligation to return part of the price already received to a buyer by an agreement to reduce the price after the sale and purchase of part of the land, and the seller has completed the registration of ownership transfer for the entire land under the purchaser's name, the obligation to perform the procedure for registration of ownership transfer and the seller's obligation to return the price to the buyer for the termination of title trust for the part of the land other than the sale purpose

[1] When each party’s right to defense of simultaneous performance is related to each other’s obligation on the basis of the concept of fairness and good faith, one party’s right to defense of simultaneous performance is recognized as having relations with each other in the performance, and one party may refuse to perform his/her obligation when the other party’s claim for performance of the other party’s obligation is made without performing the other party’s obligation or not

[2] The case holding that in case where a seller bears the duty to return part of the price already received to the buyer after the sale and purchase of a part of the land and the seller bears the duty to complete the registration of ownership transfer for the whole land under the purchaser's name, since the seller's obligation to perform the procedure for registration of ownership transfer and the seller's obligation to return the price to the buyer for the termination of title trust for the part of the land other than the purpose of sale to the buyer has the meaning of each other in terms of the fairness, it is reasonable to recognize the relation of mutual performance as

[1] Article 536 of the Civil Code, Article 103 of the Civil Code / [title trust] / [2] Article 536 of the Civil Code, Article 103 of the Civil Code / [title trust]

[1] Supreme Court Decision 91Da30927 delivered on August 18, 1992 (Gong1992, 2737)

Plaintiff (Attorney Seo-sung et al., Counsel for the plaintiff-appellant)

Defendant

Daegu District Court Decision 97Na9213 delivered on October 2, 1998

The part of the judgment below regarding the claim for the performance of the procedure for ownership transfer registration is reversed, and that part of the case is remanded to the Daegu District Court Panel Division. The remaining appeal by the plaintiff is dismissed. The costs of appeal regarding the dismissal of appeal are assessed against

1. Regarding ground of appeal No. 1

According to the reasoning of the lower judgment, the lower court: (a) concluded a sale contract with the Defendant to purchase KRW 1,918 square meters (580 square meters; hereinafter “the land before subdivision”) of KRW 174,000 on the 65-year land prior to the split-off that the Plaintiff purchased from Nonparty 1, but did not complete the registration of ownership transfer; (b) determined that the Defendant would purchase KRW 88,00,00 for the total amount of KRW 0 and KRW 90 for the land before the split-off; and (c) provided that the Defendant would have paid KRW 00 for KRW 90 on the 9-year land, which was divided into KRW 1,00,000; (d) provided that the Defendant would have paid KRW 80,000 for each of the above 0-year land, which was divided into KRW 30,000,000 on the 19-year land prior to the split-off; and (d) provided that the Defendant would have paid KRW 0080,000.

In light of the records, following the agreement between the Plaintiff and the Defendant on reduction of the purchase price of KRW 200,00 per square year after the agreement was reached between the Plaintiff and the Defendant as stated in Gap evidence No. 3, and the Defendant reached an agreement to reduce the purchase price of KRW 200,000 per square year, the Defendant had to pay KRW 30,000 as the purchase price for the portion remaining 1/2 of the land before the division of this case excluding the land of this case, and the Plaintiff had to settle the agreement to own the land of this case. In addition, the Defendant’s act of violating the rules of evidence No. 30,000 [the Plaintiff’s 28,00,000 won [the 28,00,000 won [the 200,000 won x 580,000 won] or upon the Plaintiff’s request, the Plaintiff’s act of violating the rules of evidence cannot be determined as to the land of this case, and as alleged in the grounds of appeal.

2. Regarding ground of appeal No. 2

When each party's right to defense of simultaneous performance is related to each other's obligation on the basis of the concept of fairness and the principle of good faith, one party is entitled to refuse the other party's performance if the other party's obligation is performed or the other party's obligation is not offered. In light of the purport of this system, the Plaintiff's obligation to return the amount of KRW 30,00,000 to the Defendant as a result of the ex post facto reduction due to the circumstances as stated in the judgment of the court below, but this is merely an obligation arising under the premise that the Defendant purchases only 1/2 of the land before the split-off. Thus, in such a situation, the Defendant's obligation to implement the ownership transfer registration procedure on the ground of the title trust of the land before the split-off, and the obligation to return KRW 30,00,000,000 upon the completion of the registration of ownership transfer, should be acknowledged as having no special circumstance to fulfill the obligation to return the said amount of KRW 30,000,00.

The court below held that when the plaintiff paid 30,000,000 won to the defendant, the payment of the above 30,000,000 won was made on the basis that the plaintiff agreed to own the land of this case in installments. However, even after examining the record, there is no circumstance that it should not be interpreted as the prior performance obligation. Thus, in light of the facts before and after the fact-finding acknowledged by the court below, the above agreement should not be interpreted more than the purport of confirming that the plaintiff had to settle the amount of 30,00,000 won to the defendant in order to implement the original agreement as stipulated in the evidence No. 3 as a result of the reduction of the price.

However, as seen earlier, the Defendant’s payment of KRW 30,00,00 to the Plaintiff of KRW 30,000 was established with an agreement to definitely own all the land before the division. It is reasonable to interpret that under the above agreement, the Defendant reserved the Plaintiff’s right to terminate the Plaintiff’s right to terminate the title trust agreement by lawfully providing payment of KRW 30,00,000 to the Plaintiff. On the contrary, it is reasonable to interpret that the Plaintiff lawfully provided payment of KRW 30,000 to the Defendant, thereby reserving the Defendant’s right to extinguish the above right. However, on the ground that the above agreement exists, it cannot be said that there is no ground to interpret that the Plaintiff’s obligation to return KRW 30,00,000 to the Plaintiff for the termination of the title trust agreement and claiming the implementation of the ownership transfer registration procedure. In addition, according to the records, the Defendant’s payment of KRW 300,000,000 to the Plaintiff’s 00,000,000,00 won paid for 000.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to concurrent performance, which affected the conclusion of the judgment, by misunderstanding the interpretation of the above agreement between the plaintiff and the defendant. The ground of appeal assigning this error is with merit.

3. Therefore, the part of the judgment of the court below concerning the claim for the discharge of the procedure for ownership transfer registration is reversed, and that part of the case is remanded to the court below for a new trial and determination. The remaining appeal by the plaintiff is dismissed, and the costs of appeal as to the dismissal of appeal are assessed against the plaintiff. It is so decided

Justices Cho Cho-Un (Presiding Justice)