Open Decision Ledger · Civil obligations & remedies
Implied rescission without agreement on restitution
Supreme Court, Feb. 10, 2021, 2020Da271315 (judgment)
No holding summary · checked against points at issue. The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Case name: 권리금등반환청구
Official text on the National Law Information Center
Question
Can an implied consensual rescission be found where the parties agreed only to bring the contract to an end, with no arrangement at all on restitution of what had already been performed or on damages?
Holding
No. A consensual rescission requires offer and acceptance, opposite declarations agreeing to extinguish the existing contract, and the contents of the will shown by each party's conduct must coincide objectively; an implied rescission requires both parties' lack or abandonment of the will to perform the contract to converge. Where a contract has been partly performed, an agreement to end it with no arrangement on restoring what was performed or on damages is exceptional in ordinary experience, so a rescission is hard to find; the Supreme Court reversed the judgment below and remanded the case to the Suwon District Court.
Points at issue, verbatim
이미 이행된 부분의 원상회복 등에 관한 약정 없이 계약을 종료시키는 합의만 한 경우, 계약의 합의해제가 성립하였다고 볼 수 있는지 여부(소극)
Unofficial English translation
Whether a consensual rescission of a contract can be regarded as having been formed where the parties reached only an agreement to terminate the contract without any stipulation regarding restitution of the parts already performed, etc. (negative)
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 수원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Suwon District Court.
Form of the test
Elements stated Stated in the decision
계약이 성립하는 경우와 마찬가지로 기존 계약의 효력을 소멸시키기로 하는 내용의 해제계약의 청약과 승낙이라는 서로 대립하는 의사표시가 합치될 것을 그 요건으로 하며
Unofficial English translation
just as in the case where a contract is formed, the requirement is that the opposing declarations of intention, namely the offer and the acceptance of a rescission agreement whose content is to extinguish the effect of the existing contract, concur,
Factors
- 계약의 묵시적 합의해제를 인정하기 위한 요건
- 이미 이행된 부분의 원상회복 등에 관한 약정 없이 계약을 종료시키는 합의만 한 경우
- 계약의 합의해제가 성립하였다고 볼 수 있는지 여부(소극)
Unofficial English translation
• Requirements for acknowledging an implied agreement to rescind a contract
• Where the parties reached only an agreement to terminate the contract without any stipulation regarding restitution of the parts already performed, etc.
• Whether a consensual rescission of a contract can be regarded as having been formed (negative)
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1994. 9. 13. 선고 94다17093 판결(공1994하, 2640)
Unofficial English translation
Supreme Court Decision 94Da17093 decided September 13, 1994 (Gong 1994 Ha, 2640)
Decisions referred to
대법원 1994. 9. 13. 선고 94다17093 판결(공1994하, 2640), 대법원 1998. 8. 21. 선고 98다17602 판결(공1998하, 2296), 대법원 2004. 6. 11. 선고 2004다11506 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
Where a contract has been partly performed, what agreement on restoring what was performed or on damages suffices to make the consensual rescission effective?
The judgment the Suwon District Court delivers after the remand, examining whether the parties' declarations objectively coincided, will show how this rule is applied. A change to Article 543 or Article 548 of the Civil Act, or a later Supreme Court decision on consensual rescission, would require this entry to be read again.
Cross-family AI independent reading & axis check
8 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-26
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on all 8 axes.
Raw responses and comparison record: Protocol · Blind readings (JSONL) · Axis comparison (JSONL) · SHA-256 (JSON)
Lower-court contrast & scope of application
Lower-court reading vs. Supreme Court holding
Lower-court context: The Suwon District Court, in its judgment of 17 September 2020 (2020Na60925), held that the fee-in-transfer contract between the plaintiff and the defendant had been implicitly rescinded at the latest around 19 June 2019. It relied on the facts that the plaintiff had drawn up no contract document with the defendant, had paid the KRW 50 million to the broker, and could be thought able to recover that money through the broker.
Supreme Court standard: The Supreme Court held that even if the will to end the contract had converged around 19 June 2019, when the defendant's written answer reached the plaintiff, the defendant refused the plaintiff's claim for return of the KRW 40 million intermediate payment, so the parties' wills were opposed on restoring the part already performed. Agreeing to end the contractual relationship with no arrangement on that restoration is exceptional in ordinary experience, and the circumstances the court below relied on did not show objective concurrence of will. It held that the judgment below misapprehended the law on consensual rescission and that the error affected the result, and reversed and remanded with the unanimous opinion of the Justices.
Distinguishing conditions
- A case in which the parties, alongside agreeing to end the contract, also made arrangements on restoring what had been performed and on damages, so that the exceptional circumstance the Court relied on is absent.
- A contract of which nothing had been performed at all, since the Court's reasoning turns on the contract having been partly performed.
- A case in which the party holding the payment agreed to return the part already performed, so that the parties' wills were not opposed on restitution, unlike here where the defendant refused the plaintiff's claim for return of the intermediate payment.
Record verification notes
Set out each side's statements on the part already performed and look for any arrangement on restoration or damages, since the Court found none even assuming the parties' wills to end the contract had converged. Note that the defendant received the KRW 40 million intermediate payment from the broker, so the court below's view that the plaintiff could recover from the broker did not assist. Check the dates, since the court below fixed the time of rescission by the defendant's written answer of 17 June 2019 reaching the plaintiff on 19 June 2019, and keep in mind that the provisions applied were Article 543 and Article 548 of the Civil Act.
From the official text
Points at issue
계약의 묵시적 합의해제를 인정하기 위한 요건 / 이미 이행된 부분의 원상회복 등에 관한 약정 없이 계약을 종료시키는 합의만 한 경우, 계약의 합의해제가 성립하였다고 볼 수 있는지 여부(소극)
Unofficial English translation
Requirements for acknowledging an implied agreement to rescind a contract / Whether a consensual rescission of a contract can be regarded as having been formed where the parties reached only an agreement to terminate the contract without any stipulation regarding restitution of the parts already performed, etc. (negative)
Summary of the holding
The official text publishes no summary of the holding for this decision. The quotation and factors in this record are copied verbatim from the points at issue; the evidence for each axis is taken from the points at issue, the order and the reasons.
Order
원심판결을 파기하고, 사건을 수원지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed, and the case is remanded to the Suwon District Court.
Provisions referred to
민법 제543조, 제548조
Read 2026-10-26 · Cross-read 2026-10-26. All quotes matched against the official text. The Chinese-character placeholders the court used for anonymised parties are given in their Korean readings, and parenthetical Chinese-character glosses are omitted.
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