The Study on the Relationship Between Duty to Elucidate and Plea of Ssimultaneous Performance in the Case of the Right to Demand for the Ground Facilities Purchase

Hyunsoo Seok
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Abstract

The supreme court case 94DA34265 (hereinafter referred to as ‘The Case’) says that in a lawsuit in which the lessor of land claims removal of ground facilities and delivery of the site against the lessee, if the lessee exercises the right to demand for the ground facilities purchase, the court has duty to elucidate whether the lessor is willing to demand delivery of the ground facilities at the same time as payment of the purchase price. (Hereinafter, elucidation above is referred to as ‘elucidation of simultaneous per- formance). At the basis of The Case, there appears to be an idea that if the lessor's claim changes to delivery of ground facilities, a judgment ordering simultaneous performance should be issued. However, according to majority opinion and precedent, for a judgment ordering simul- taneous performance to be issued, the lessee must file a plea of simultaneous performance. And the lessee's exercise of right to demand for purchase does not include a plea of simultaneous performance. Therefore, the idea that a judgment ordering simultaneous performance should be issued when the lessor's claim is changed to delivery of ground facilities is not valid. On the other hand, according to the minority theory that a ruling ordering simultaneous performance is possible even without a plea of simultaneous performance, the above idea is valid. According to the above majority opinion and precedent, elucidation of simultaneous performance is illegal as it exceeds the limits of the elucidation event. This is because the court indirectly informs the lessee of the existence of a plea of simultaneous performance by providing an elucidation of simultaneous performance to the lessor. On the other hand, according to the minority theory, the elucidation of simultaneous performance is not illegal because the outcome of the lawsuit is not affected even if the court informs the lessee of the existence of the plea of simultaneous performance. However, following the minority theory does not mean that elucidation of simultaneous performance is the court's duty. If the lessor requests delivery of ground facilities and the lessee's plea of simultaneous performance is acknowledged, the court may make a ruling upholding part of the claim. The court is not obligated to ensure that all claims are accepted through elucidation. In the end, The Case's position that elucidation of simultaneous performance is the court's duty is not valid, regardless of whether by majority or minority theory.
地面设施购买请求权案件中阐明义务与同时履行请求权的关系研究
最高法院 94DA34265(以下简称 "该案")指出,在土地出租人向承租人主张拆除地面设施并交付场地的诉讼中,如果承租人行使地面设施购买请求权,法院有义务阐明出租人是否愿意在支付购买价款的同时要求交付地面设施。(以下将上述阐释称为 "同时履行阐释")。 本案的基本观点似乎是,如果出租人的要求变更为交付地面设施,则应作出命令同时履行的判决。 然而,根据多数意见和先例,要下达命令同时履行的判决,承租人必须提出同时履行的抗辩。而承租人行使要求购买的权利并不包括对同时履行的抗辩。因此,当出租人的请求权变更为交付地面设施时,应作出命令同时履行的判决的观点是不成立的。另一方面,根据少数人的理论,即使没有同时履行抗辩也可以做出命令同时履行的判决,上述观点是成立的。 根据上述多数意见和先例,阐明同时履行是非法的,因为它超出了阐明事件的限度。这是因为法院通过向出租人提供同时履行的阐释,间接告知承租人存在同时履行的抗辩。另一方面,根据少数人理论,同时履行的阐明并不违法,因为即使法院告知承租人存在同时履行的抗辩,也不会影响诉讼结果。 但是,遵循少数人理论并不意味着阐明同时履行是法院的职责。如果出租人要求交付地面设施,而承租人的同时履行抗辩得到承认,法院可以做出支持部分主张的裁决。法院没有义务通过阐释来确保所有主张都被接受。 归根结底,本案认为阐明同时履行是法院的职责的立场是不成立的,无论采用多数理论还是少数理论。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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