(a) In case where a lawsuit filed in the appellate court for retrial was rendered in the first instance court and rendered a judgment on the merits, the measure to be taken by the appellate court

(b) If the due date for the payment of the remainder for the buyer's transfer of ownership has expired without providing the seller's registration of transfer of ownership, whether the buyer is liable for delay in payment of the part payment for the buyer's part payment;

A. Where the appellate court rendered a judgment on the merits, a lawsuit for retrial may be brought only against the appellate court's judgment. Thus, even if the judgment on the grounds of retrial is stated in the petition of first instance, if it is obvious by its own or by the litigation data that the grounds for retrial asserted in the petition of first instance are related to the appellate court's judgment, the court of first instance, which received the petition of second instance, shall transfer it to the appellate court, which is the competent court. However, if the first instance court did not take such measures and decides to dismiss the lawsuit for retrial after hearing on the merits, and if the case on the grounds of appeal of the plaintiff of first instance is lawfully pending in the appellate court, the appellate court shall revoke the first instance judgment on the grounds of violation of exclusive jurisdiction and review and determine the retrial case,

B. Even if the buyer did not perform the purchase price, such as the intermediate payment, on which the buyer is obligated to perform the contract, the intermediate payment and the remainder are not paid until the due date for the payment of the remainder, and if the date was passed without the submission of the documents required for the registration of transfer of ownership by the seller, the buyer’s intermediate payment and the remainder payment and the seller’s transfer of ownership are related to the simultaneous performance. At that time, the buyer is not liable for delay of payment of the intermediate payment.

A. Article 424 of the Civil Procedure Act: Article 536 of the Civil Act

B. Supreme Court Decision 80Da268 delivered on April 22, 1980, Supreme Court Decision 87Meu1029 delivered on September 27, 1988

[Judgment of the court below]

Defendant (Reexamination Plaintiff)

Daejeon District Court Decision 88ReNa24 delivered on November 16, 1988

The part of the judgment below against the plaintiff shall be reversed and the case shall be remanded to Daejeon District Court Panel Division.

The grounds of appeal No. 1 are examined.

Where an appellate court rendered a judgment on the merits, only the appellate court may bring a lawsuit for retrial against the judgment of the first instance, and since a lawsuit for retrial against the judgment of the first instance cannot be brought against the judgment of the first instance, the appellate court in receipt of the petition for retrial shall transfer the petition to the appellate court, which is the competent court, if the grounds for retrial alleged in the grounds for retrial are clearly stated in the judgment of the first instance even if the petition for retrial is indicated in the judgment of the first instance court, by itself or by litigation documents (see Supreme Court Decision 83Meu1981, Feb. 29, 1984). Nevertheless, the Hongsung branch of the Daejeon District Court, which is the legal ground of the first instance, in receipt of the petition for retrial, did not take such measures and dismissed the lawsuit for retrial after examining the merits of the petition, but if so, the appellate court should revoke the judgment of the first instance on the grounds of violation of exclusive jurisdiction, and should have received the petition for retrial as well as the case transferred from the court of first instance to the appellate court.

In the above purport, the court below's decision that deliberated and decided on the lawsuit of this case is just and the ground of appeal pointing an objection against this is not accepted.

The grounds of appeal No. 2 are examined.

The court below held on March 24, 1983 that the plaintiff, an agent of the defendant, purchased the land listed in the attached list (the land in this case) and the 369 square meters in Chungcheongnam-gun ( Address omitted) from his father, Chungcheongnam-gun, Chungcheongnam-gun, and shall pay 130 Gama as contract deposit to the above non-party 1. The remaining remaining 100 Gama as 100 on the land in this case had been completed for the registration of the establishment of a mortgage in the name of the non-party 2 and the registration of the transfer of ownership to pay the above 100 Gama as 100 on December 31, 1983 to the plaintiff for the reason that the plaintiff did not lawfully pay the above 130 Kamama-gun as contract deposit and the remaining 100 Gama-gun as 100 on July 9, 1984.

However, even if the buyer did not perform the purchase price such as intermediate payments, etc., he did not pay the intermediate payment and the remaining payment at the time of the termination of the contract, and the seller's transfer registration required documents for the payment of the buyer's intermediate payment and the payment of the remaining payment and the seller's transfer registration for ownership are simultaneously performed. At that time, the buyer is not liable for the delay of payment (see Supreme Court Decision 87Meu1029, Sept. 27, 198; Supreme Court Decision 80Da268, Apr. 22, 1980) and the payment of 2000 Ga, which the plaintiff did not pay, shall be deemed to be in a simultaneous performance relationship with the provision of the defendant's ownership transfer registration documents with the payment of 100 Gae, and since the defendant's peremptory notice of the execution of the contract without providing the ownership transfer registration documents for the real estate in this case is inappropriate, it shall be deemed that the cancellation of the contract is invalid.

The court below committed an unlawful act of misunderstanding the legal principles on the cancellation of contract, and it constitutes Article 12 (2) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings.

Therefore, the part of the judgment of the court below is reversed, and the case is remanded to Daejeon District Court Panel Division. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Yong-dong (Presiding Justice)