(2) The court shall determine the amount of

1. As to the grounds of appeal Nos. 1, 2, and 4

According to the reasoning of the judgment below, the court below held that (i) the Plaintiff’s agreement on the transfer of each of the real estate owned by the Plaintiff on September 6, 2007 between the Intervenor and the Intervenor, which was based on evidence of its adoption, was 350,000,000, and the delivery date of each of the real estate shall be September 25, 2007, but if delivery is delayed due to special circumstances, it shall be agreed with the buyer in advance, and the buyer shall not claim compensation for the use of each of the real estate within 30,000,000,000,000,000,000,000,000 won and 80,000,0000,000,000,000,000,000,000,000,000,000,000,000,00,000,00,000,00).

2. As to the third ground for appeal

A. According to the reasoning of the judgment below, the share transfer contract of this case is a transfer contract to secure the plaintiff's obligation to compensate for damages to the plaintiff's assistant intervenor due to delay in delivery of each real estate of this case and execution of provisional disposition. If the plaintiff suffered damages to the defendant assistant intervenor due to delay in delivery of each real estate of this case and execution of provisional disposition, the plaintiff is liable to compensate for them according to the settlement contract of this case. However, in the case of the principal of the loan borrowed for payment of the above purchase price among the damages alleged by the defendant, the principal of the loan, brokerage commission, acquisition tax, and various registration fees, it cannot be deemed that the defendant assistant intervenor paid them due to delay in delivery of each real estate of this case and execution of provisional disposition. Thus, the court below determined that the above money cannot be deemed as damages suffered by the defendant assistant intervenor due to delay in execution of delivery of each real estate of this case and execution of provisional disposition of provisional disposition of this case, unless there are other special circumstances. Thus, the defendant's obligation to compensate for damages caused by delay in delivery of each real estate of this case or execution of provisional disposition of this case.

B. However, it is difficult to accept the above determination by the court below for the following reasons. (1) If the liability for damages due to nonperformance is recognized, even if there is insufficient proof as to the amount of damages, the court should not reject the claim for damages solely on the ground that there is insufficient proof as to the amount of damages, but should actively exercise the right to explanation and urge the proof as to the amount of damages (see, e.g., Supreme Court Decisions 81Da1045, Apr. 13, 1982; 2006Da37892, Feb. 14, 2008).

2) According to the above facts acknowledged by the court below, the plaintiff acknowledged the delay of delivery of each real estate of this case at the time of the settlement agreement of this case and the damage to the defendant's assistant intervenor due to the execution of provisional disposition of this case was responsible for the plaintiff, and agreed to compensate the defendant's assistant intervenor for the above damage. Accordingly, the plaintiff shall be liable for damages due to the delay of delivery and execution of provisional disposition of this case against

In such a case, the lower court did not readily conclude that there was no damage caused by the delay of delivery and the execution of the provisional disposition of this case solely on the ground that there was no assertion or proof by the Defendant, etc., on the amount of damage caused by the delay of delivery and the execution of the provisional disposition of

Furthermore, in this case where the defendant et al. could not use or make profits from the possession of each real estate of this case because it was impossible for the defendant et al. to use or make profits from the purchase fund of this case, as alleged by the defendant et al., if the defendant's assistant intervenor tried to repay the purchase fund of this case by repurchase or resale of each real estate of this case, but the disposal was delayed due to the execution of provisional disposition of each real estate of this case, barring any special circumstance, it is difficult to view that the defendant's assistant participant could have obtained economic benefits to offset the loss of delay in disposal by using or making profits from the real estate of this case during the delayed period of disposal, barring any special circumstance. Therefore, it is sufficient to view that at least the amount equivalent to the interest calculated at the statutory rate on the disposal price of real estate of this case during the delayed period of disposal due to the execution of provisional disposition belongs to ordinary damages (see Supreme Court Decision 2001Da26774, Nov. 13, 2001).

Nevertheless, solely on the grounds indicated in its reasoning, the lower court cited the Plaintiff’s conjunctive claim seeking delivery of the instant share certificates against the Defendant, deeming that there is no evidence that the secured claim for the instant share transfer security exists. In so doing, the lower court erred by misapprehending the legal doctrine on the occurrence and scope of liability for damages due to nonperformance of obligation, and failing to exhaust all necessary deliberations, thereby adversely affecting the conclusion of the judgment. The

3. Conclusion

Therefore, the part of the lower judgment’s conjunctive claim is reversed, and that part of the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok

The Chief Justice Park Jae-young

Justices Kim Gin-young