Open Decision Ledger · Civil obligations & remedies
Refusing the price return when redevelopment timing is unknown
Supreme Court, Dec. 30, 2021, 2021Da264673 (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: 약정금
Official text on the National Law Information Center
Question
Where the return of the exchange price falls due on a fixed date but the counter-performance depends on redevelopment whose timing is unknown, may the party holding that return obligation refuse to perform it under the defense of insecurity in Article 536(2) of the Civil Act?
Holding
It was not. The Court held that returning KRW 40 million before the allocation right in the Busan property was transferred was not contrary to equity and good faith, even though the timing of the redevelopment of that property could not be known, because the defendant could have foreseen that state of affairs when the exchange contract was made. It relied on the contract's own term requiring the defendant to return the money first if redevelopment had not begun by 11 January 2019, and on the written memorandum the defendant issued after receiving the money, whose content confirmed the exchange contract again. The Court left the lower court's reading of the term 'allocation right' undisturbed, but reversed the judgment for misapplying Article 536(2) of the Civil Act and the parties' intent as shown in the documentary evidence, and remanded the case to the Busan District Court.
Points at issue, verbatim
병이 교환계약 체결 당시 예상할 수 있었던 것인 점 등 제반 사정에 비추어 보면, 병이 교환계약에 따라 갑으로부터 부산 부동산에 관한 분양권을 양도받기에 앞서 갑에게 교환대금을 반환하는 것이 공평과 신의칙에 반하는 경우에 해당한다고 볼 수 없는데도
Unofficial English translation
in light of all the circumstances, including the fact that C could have foreseen this at the time of entering into the exchange contract, it cannot be regarded as a case contrary to the principle of good faith and fairness for C to return the exchange money to A before receiving from A a transfer of the subscription right concerning the Busan real property pursuant to the exchange contract, yet
Disposition
Reversed and remanded Stated in the decision
원심판결을 파기하고, 사건을 부산지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed and the case is remanded to the Busan District Court.
Form of the test
Circumstances weighed Stated in the decision
이와 같은 사유가 있는지 여부는 당사자 쌍방의 사정을 종합해서 판단하여야 한다
Unofficial English translation
whether such a ground exists must be determined by comprehensively assessing the circumstances of both parties
Factors
- 부산 부동산에 관한 재개발이 언제 진행될지 알 수 없는 상황이라고 하더라도
- 병이 교환계약 체결 당시 예상할 수 있었던 것인 점 등 제반 사정에 비추어 보면
- ‘갑이 병에게 교환대금을 지급하되, 부산 부동산에 관하여 잔금일로부터 2년 후에 재개발이 진행되지 않으면 병은 갑에게 교환대금을 돌려주고, 갑은 병에게 부산 부동산에 관한 분양권의 권한을 준다.’고 정하였고
- 그 후 병이 갑으로부터 교환대금을 지급받은 뒤 각서를 작성하여 교환계약의 내용을 다시 확인하였는데
Unofficial English translation
• even in the situation where it could not be known when redevelopment of the Busan real property would commence,
• in light of all the circumstances, including the fact that C could have foreseen this at the time of entering into the exchange contract,
• "A shall pay the exchange money to C, but if redevelopment of the Busan real property has not commenced two years after the balance payment date, C shall return the exchange money to A, and A shall grant C the entitlement to a subscription right concerning the Busan real property," and
• thereafter, after C received the exchange money from A, C prepared a written memorandum and again confirmed the contents of the exchange contract,
Relation to precedent
Follows earlier decisions Stated in the decision
대법원 1989. 9. 12. 선고 88다카11756 판결(공1989, 1398)
Unofficial English translation
Supreme Court Decision 88DaKa11756 decided September 12, 1989 (Gong 1989, 1398)
Decisions referred to
[1] 대법원 1989. 9. 12. 선고 88다카11756 판결(공1989, 1398), 대법원 2015. 5. 14. 선고 2013다100507 판결
Burden of proof
Not addressed Not in the decision
Open question and revisit condition
How strong must the evidence of a change in the obligee's credit or financial position be, and how far must it be unforeseeable at the time of contracting, before returning the exchange price becomes contrary to equity and good faith?
A later decision applying Article 536(2) of the Civil Act to a contract that expressly adjusts the arrangement for a long redevelopment delay, or an amendment to Article 536 of the Civil Act, would require this entry to be read again. A record showing a genuine change in the plaintiff's credit or financial position that the defendant could not have foreseen when contracting would also reopen the question.
Cross-family AI independent reading & axis check
7 of 8 axes matched GPT-6 Astra (OpenAI, codex CLI) · 2026-10-25
A reader from another model family (GPT-6 Astra), given the official text but not the primary reading, agreed on 7 of the 8 axes; the readings differed on axis 4 (form of the test).
Axis 4 (Form of the test): Primary “Circumstances weighed” vs Independent “Existing test applied”
Both readings record the burden of proof as not addressed, so the divergence does not lie in the burden itself; it more likely comes from how the standard is described (comprehensive consideration in the primary, application to the facts in the independent).
이는 병이 교환계약 체결 당시 예상할 수 있었던 것인 점 등 제반 사정에 비추어 보면Raw 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 Busan District Court, in its judgment of 14 July 2021 (2020Na58045), left the first-instance judgment in place. It held that the defendant's obligation to return KRW 40 million and the plaintiff's obligation to transfer the allocation right in the Busan property stood in a reciprocal relation, and that the performance of the latter had become conspicuously uncertain, so the defendant could refuse to perform its prior obligation of returning the money. It also rejected the plaintiff's contention that the term 'allocation right' in the exchange contract should be read as the premium attached to that right.
Supreme Court standard: The Supreme Court held that a conspicuous reason making the counter-party's performance difficult under Article 536(2) of the Civil Act means a change of circumstances, such as the obligee's credit instability or the deterioration of its financial position, that makes the counter-performance unobtainable and makes performing the prior obligation contrary to equity and good faith, and that whether such a reason exists must be judged on the circumstances of both parties together. Even if the timing of the redevelopment could not be known, that state of affairs was one the defendant could have foreseen at the time the exchange contract was made, and returning the money before the allocation right was transferred was not contrary to equity and good faith. The Court therefore found that the court below had misread Article 536(2) and the parties' intent as shown in the documentary evidence, reversed the judgment, and remanded the case to the Busan District Court.
Distinguishing conditions
- A case where, whether or not the change arose after the contract, the obligee's credit has become unstable or its financial position has deteriorated, so that the counter-performance cannot be obtained and performing the prior obligation would be contrary to equity and good faith.
- A contract that itself contains a clause adjusting the arrangement when redevelopment does not proceed for a long time, since the Court relied on the absence of such a clause.
- A case where the party seeking to refuse the first performance shows, on the circumstances of both parties, that performing it would in fact be contrary to equity and good faith.
Record verification notes
Set the exchange contract and the written memorandum of 11 January 2017 side by side, and check whether they fix a date for the return and exempt it only on the sale of the Busan property or the receipt of the compensation, since the Court relied on that limited exemption. Then gather what the defendant can offer on any change in the plaintiff's credit or financial position, and on whether that change was one the defendant could have foreseen at the time of contracting, because the Court treated foreseeability as decisive here. Keep the reading of the term 'allocation right' separate, since the Supreme Court left the lower court's interpretation undisturbed.
From the official text
Points at issue
[1] 민법 제536조 제2항에서 말하는 ‘상대방의 이행이 곤란할 현저한 사유’의 의미 및 이러한 사유가 있는지 판단하는 방법 [2] 갑과, 을의 대리인 병이 갑 소유 울산 부동산과 을 소유 부산 부동산의 교환계약을 체결하면서 ‘갑이 병에게 교환대금을 지급하되, 부산 부동산에 관하여 잔금일로부터 2년 후에 재개발이 진행되지 않으면 병은 갑에게 교환대금을 돌려주고, 갑은 병에게 부산 부동산에 관한 분양권의 권한을 준다.’고 정하였고, 그 후 병이 갑으로부터 교환대금을 지급받은 뒤 각서를 작성하여 교환계약의 내용을 다시 확인하였는데, 갑이 병에게 부산 부동산에 관하여 잔금일로부터 2년이 지난 후에도 재개발이 진행되지 않았다며 교환대금의 반환을 구하자, 병이 재개발이 언제 진행될지 알 수 없어 갑의 의무 이행이 곤란한 현저한 사유가 있다며 민법 제536조 제2항에서 정한 불안의 항변권을 행사한 사안에서, 부산 부동산에 관한 재개발이 언제 진행될지 알 수 없는 상황이라고 하더라도, 이는 병이 교환계약 체결 당시 예상할 수 있었던 것인 점 등 제반 사정에 비추어 보면, 병이 교환계약에 따라 갑으로부터 부산 부동산에 관한 분양권을 양도받기에 앞서 갑에게 교환대금을 반환하는 것이 공평과 신의칙에 반하는 경우에 해당한다고 볼 수 없는데도, 병의 교환대금 반환의무와 대가관계에 있는 갑의 분양권 양도 등 의무의 이행이 현저하게 불투명하게 된 경우에 해당한다고 보아 병이 갑에게 선이행의무인 교환대금 반환의무를 거절할 수 있다고 판단한 원심판결에 법리오해의 잘못이 있다고 한 사례
Unofficial English translation
[1] The meaning of "a remarkable ground that makes the other party's performance difficult" as used in Article 536 paragraph (2) of the Civil Act, and the method of determining whether such a ground exists [2] In a case where A and C, B's agent, entered into an exchange contract for A's real property in Ulsan and B's real property in Busan, providing that "A shall pay the exchange money to C, but if redevelopment of the Busan real property has not commenced two years after the balance payment date, C shall return the exchange money to A, and A shall grant C the entitlement to a subscription right concerning the Busan real property," and thereafter, after C received the exchange money from A, C prepared a written memorandum and again confirmed the contents of the exchange contract, whereupon, when A sought the return of the exchange money from C on the ground that redevelopment of the Busan real property had not commenced even after two years had passed from the balance payment date, C exercised the defense of insecurity provided in Article 536 paragraph (2) of the Civil Act, asserting that it could not be known when redevelopment would commence and that there was a remarkable ground making A's performance difficult, even in the situation where it could not be known when redevelopment of the Busan real property would commence, in light of all the circumstances, including the fact that C could have foreseen this at the time of entering into the exchange contract, it cannot be regarded as a case contrary to the principle of good faith and fairness for C to return the exchange money to A before receiving from A a transfer of the subscription right concerning the Busan real property pursuant to the exchange contract, yet the judgment of the court below found that this was a case in which the performance of A's obligations, such as the obligation to transfer the subscription right, which stand in an exchange relationship with C's obligation to return the exchange money, had become markedly obscure, and held that C could refuse to perform C's obligation to return the exchange money as the antecedent obligation, and the judgment of the court below is erroneous in misapprehension of legal principles
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 부산지방법원에 환송한다.
Unofficial English translation
The judgment of the court below is reversed and the case is remanded to the Busan District Court.
Provisions referred to
[1] 민법 제536조 제2항 [2] 민법 제536조 제2항
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