[1] In a case where one of the parties to a single contract that covers more than one screening contract under the Civil Act is in a concurrent performance relationship with the other party's several obligations and quid pro quo, whether both parties are in a concurrent performance relationship (affirmative)

[2] The elements of contract rescission or rescission contract

[3] Requirements for cancelling a contract due to the so-called "non-performance"

[4] The case holding that in case where Gap agreed to take over the secured debt of the right to collateral security established on the land in return for the transfer of ownership of the land and building from Eul, but Gap filed an application for provisional attachment against the land as Gap delayed the registration of ownership transfer under the above agreement after completing the registration of right to claim ownership transfer under Byung's name, the case holding that the above agreement cannot be deemed to have been rescinded or the non-performance thereof was cancelled

[1] In the event that both parties in a bilateral contract have a relationship of simultaneous performance as a matter of principle, and furthermore, where one party has entered into a contract combining two or more typical contracts under the Civil Act, if one of the parties is deemed to have a relationship of price with several obligations and several obligations of the other party, the multiple obligations of the other party and several obligations of the other party are concurrently performed.

[2] A contract for rescission or rescission of a contract is a new contract, regardless of the existence of a right of rescission, which provides that both parties to the contract shall terminate the validity of the existing contract by agreement and return it to the same state as that for which the contract had not been concluded initially. For the purpose of rescission of a contract, the agreement shall be concluded with the opposite expression of intent, like the formation of the contract, which is the offer and acceptance of the contract (agreement). In order to establish such an agreement, the contents of the agreement expressed by both parties must be objectively identical. In addition, the cancellation of the agreement may be made not only explicitly but also by implied agreement between both parties. However, to be recognized as an implied rescission of a contract, it is insufficient to deem that both parties have failed to perform the remaining obligations over a long period of time under the conclusion of the contract and neglected to perform it. In such cases, whether both parties either have no intent to realize the contract or have expressed their intent to waive the contract should be determined by comprehensively taking into account the various circumstances after the conclusion of the contract.

[3] In the case of the cancellation of a contract due to a default, where the intention of refusal is expressed in advance, the requirements for the cancellation of contract are mitigated when compared with the cancellation of the contract at the time of the delay of performance because the other party's peremptory notice and the other party's offer of performance is not required. In addition, in order to recognize implied intention of refusal of performance by taking into account the various circumstances after the contract or after the contract, the intention of refusal should be clearly acknowledged in light of the circumstances.

[4] In a case where Gap agreed to take over the secured debt of the right to collateral security established on the land in return for the transfer of ownership of the land and building from Eul, but as Eul delayed the registration of ownership transfer under the above agreement after completing the registration of right to claim ownership transfer under Byung's name with respect to the land, Gap filed an application for provisional attachment of land, the case holding that the above agreement was rescinded or it cannot be deemed that Gap had an intention to cancel the agreement between Eul and Eul, or that Gap did not have an intention to realize the contract, or that Gap had an intention to waive the contract, considering various circumstances before and after the application for provisional attachment, it is difficult to conclude that Gap's intention to refuse the execution was clearly and ultimately expressed, since it is difficult to conclude that the application for provisional attachment

[1] Article 536 of the Civil Act / [2] Article 543 of the Civil Act / [3] Articles 543 and 544 of the Civil Act / [4] Articles 543 and 544 of the Civil Act

[1] Supreme Court Decision 2007Da40260 Decided February 28, 2008 / [2] Supreme Court Decision 92Da4130, 4147 Decided June 23, 1992 (Gong1992, 2252) Supreme Court Decision 95Da12682, 12699 (Gong196Ha, 2299) Decided June 25, 1996 / [3] Supreme Court Decision 92Da9463 Decided September 14, 1992 (Gong192, 2872) Supreme Court Decision 2004Da22971 Decided November 9, 2006

Plaintiff (Law Firm Barun, Attorneys Cho Ho-chul et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Seo-young, Attorneys Lee Jae-do et al., Counsel for the defendant-appellant)

Chuncheon District Court Decision 2009Na4316 Decided August 27, 2010

The judgment of the court below is reversed, and the case is remanded to Chuncheon District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, the court below acknowledged the facts based on the employment evidence, and determined that Defendant 2 acquired the ownership of the land of this case as Defendant 2 purchased the land of this case on his own account, and Defendant 2 completed the building of this case at his own effort and expense.

In light of the records, Defendant 2 appears to have used part of the funds for the Ywon Construction Co., Ltd. (hereinafter “Ywon Construction”) in the course of paying the purchase price of the instant land and the construction cost for the new construction of the instant building. However, this is merely a matter to be settled between Defendant 2 and the Ywon Construction, and solely for that reason, it cannot be denied that Defendant 2 is the owner of the instant land and the original purchaser who completed the instant building.

Therefore, the judgment of the court below on the owner of the instant land and building is just, and there is no error in the misapprehension of legal principles as to the owner of real estate or in violation of the rules of evidence.

2. Regarding ground of appeal No. 2

A. In a case where both parties in a bilateral contract have a relationship of simultaneous performance, in principle, as a matter of principle, and where a contract combining two or more typical contracts under the Civil Act is concluded, if one of the parties has a relationship of simultaneous performance with several obligations of the other party, it is reasonable to view that the multiple obligations of the other party and several obligations of the other party are in a relationship of simultaneous performance (see Supreme Court Decision 2007Da40260, Feb. 28, 2008, etc.).

B. The court below acknowledged the following facts based on the evidence of employment: (a) around July 2006, the Nonparty: (a) sold the instant land and buildings to Defendant 2; (b) requested the Plaintiff to sell them to the Plaintiff; and (c) Defendant 2 consented thereto; and (b) around that time, the Plaintiff and Defendant 2 took over KRW 41,00,000 as collateral obligation of the right to collateral security established on the instant land and KRW 47,00,000 as collateral obligation of the right to lease of the instant building; and (c) paid KRW 150,00,00 as collateral obligation of the right to lease of the instant building; and (d) Defendant 2 transferred the instant land and buildings to the Plaintiff (hereinafter “instant agreement”); and (d) concluded an agreement with the Plaintiff to pay KRW 150,000,000 as collateral obligation of the Plaintiff and Defendant 2’s obligation to pay KRW 15,500,000 to the Plaintiff.

C. In light of the above legal principles, the court below's fact-finding and decision are just, and there is no error in violation of the rules of evidence, incomplete hearing, omission of judgment, etc. as alleged in the grounds of appeal.

3. Regarding ground of appeal No. 3

A. A contract for rescission or rescission of a contract is a new contract, regardless of whether the contract has a right of rescission, which provides that both parties to the contract shall terminate the validity of the existing contract by agreement and return to the same state as that of the contract had not been concluded initially. In order to cancel the contract, the agreement shall be deemed as a requirement that the opposite expression of intent, such as the offer and acceptance of the contract, should be agreed (see, e.g., Supreme Court Decision 92Da4130, 4147, Jun. 23, 1992). In order to establish such an agreement, the contents of intent expressed by both parties must objectively coincide (see, e.g., Supreme Court

In addition, the rescission of an agreement may be made not only explicitly but also by implied agreement between the parties. However, to recognize an implied rescission of agreement is insufficient to deem that both parties have failed to perform their remaining obligations over a long-term period of time upon the conclusion of a contract and the implementation of a part thereof, leaving the contract alone alone alone. In such a case, whether both parties either have no intent to realize the contract or have an intent to waive the contract should be determined by comprehensively taking into account various circumstances after the conclusion of the contract (see Supreme Court Decision 95Da12682, 1269, Jun. 25, 1996, etc.).

Meanwhile, in the case of the cancellation of a contract due to a default, where the intention of not performing in advance is expressed in the case of the cancellation of the contract due to the so-called "non-performance", the requirements for the cancellation of contract are mitigated in comparison with the cancellation of the contract at the time of the delay of performance (see Supreme Court Decision 92Da9463 delivered on September 14, 1992). Thus, in order to recognize implied intention of refusal of performance by taking into account all the circumstances at the time of the contract or after the contract, the intention of refusal must be clearly acknowledged in light of the circumstances (see Supreme Court Decision 2004Da22971 delivered on November 9, 206, etc.).

B. (1) According to the reasoning of the judgment below, the court below acknowledged the facts of the judgment, and determined that the agreement between the plaintiff and the defendant 2 was already cancelled (in the judgment of the court below, it is unclear whether the agreement is cancelled or not due to the plaintiff's refusal to perform the obligation) around March 2007, provided that the plaintiff attempted to transfer ownership of the land of this case by refusing to pay KRW 150 million, and that the defendant 2 completed provisional registration against the defendant 1 to maintain the ownership of the land of this case, or that the plaintiff did not intend to perform the obligations between the plaintiff and the defendant 2 by filing a provisional attachment against the defendant 2.

(2) However, it is difficult to accept such a determination by the lower court for the following reasons.

According to the records, on July 14, 2006, the plaintiff paid 41 million won for the loans of the defendant No. 2 and cancelled all of the right to collateral security and superficies established on the land of this case on July 18, 2006. The defendant 2 changed the name of the owner of the building of this case to the plaintiff on July 18, 2006. The plaintiff completed the preservation of ownership of the above building on September 4, 2006. The defendant 2 did not know that the above provisional registration was made on September 7, 2006 under the name of the defendant No. 1, which was the first generation of the above land, and the provisional registration was made on September 6, 2006 (hereinafter referred to as the "provisional registration of this case"), and the plaintiff did not have any dispute over the above provisional registration of this case on the return of the above loans and the transfer of ownership of the building of this case on the ground of the above provisional registration of this case on September 20, 2006.

Examining these facts in light of the legal principles as seen earlier, it cannot be said that Defendant 2, around September 2006, which completed the provisional registration of this case, or around March 2007, upon the Plaintiff’s filing of the application for provisional seizure of real estate, concluded an agreement between the Plaintiff and Defendant 2 to rescind the instant agreement, or that the Plaintiff did not intend to realize the agreement, or that the Plaintiff had an intent to waive the said agreement. In addition, considering the various circumstances before and after the filing of the application for provisional seizure, it is difficult to readily conclude that the Plaintiff’s refusal of performance clearly and ultimately expressed the Plaintiff’s intention to refuse to perform the provisional seizure. Therefore, it cannot be deemed that the instant agreement was rescinded or that the Plaintiff’s refusal to perform the provisional seizure was cancelled.

Nevertheless, the lower court erred by misapprehending the legal doctrine of rescission due to the rescission of a contract or the rejection of performance, thereby adversely affecting the conclusion of the judgment, in determining that the instant agreement was rescinded on or around September 2006 or around March 2007. The Plaintiff’s assertion pointing this out is with merit.

4. Regarding ground of appeal No. 4

According to the records, in order to avoid the obligation to transfer ownership to the plaintiff under the agreement of this case, defendant 2 may know the completion of the provisional registration of this case on September 7, 2006. The plaintiff's right to claim the transfer registration of ownership under the agreement of this case against defendant 2 is recognized. Thus, it is reasonable to deem that the above pre-sale agreement between the defendants is a false declaration of agreement. In this case where the plaintiff subrogated defendant 2, defendant 1 is liable to implement the cancellation registration procedure of the provisional registration of this case to defendant 2.

Nevertheless, the court below held that the plaintiff's claim for cancellation registration of provisional registration of this case against defendant 1 is unlawful on the ground that the plaintiff's claim for cancellation registration of the provisional registration of this case against the defendant 2 is not recognized as the right to be preserved by the creditor's subrogation right. The court below erred by misapprehending the legal principles as to the right to be preserved by the creditor's subrogation right and failing to review, which affected the conclusion of

5. Conclusion

Therefore, all of the judgment below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)