임차인이 지상물매수청구권을 행사한 경우, 석명의무와 동시이행항변권의 관계에 관한 연구

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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.