[토지원상복구등청구사건][고집1972민(2),93]
Where the debtor delays the performance of his/her obligation, whether the creditor may also claim damages equivalent thereto at the same time as the original claim for performance of obligation.
If the obligor delays the performance of an obligation, the obligee may claim damages in lieu of the original performance of an obligation. Therefore, the obligee cannot claim damages as well as other damages equivalent thereto at the same time when seeking the original performance of an obligation.
Article 95 of the Civil Act
Plaintiff Incorporated Foundation
Korea
Daegu District Court of First Instance (71 Gohap316)
1. The original judgment shall be modified as follows:
2. The Defendant, as in the attached design, performs emblurging construction work on the line connecting 1,2,3, and 11 points in the separate drawings in the line which connects 6075 square meters (number 1 omitted) and 254 square meters (number 2 omitted) prior to the said 254 square meters (number 2 omitted), as in the attached design, on the line which connects 8,9 points and 6,11 of the aforementioned drawings, shall be installed on the line which connects 1,23,4,5,6,7,7,8,9,10,12, and shall be paid KRW 8,00.
3. The plaintiff's remaining claims are dismissed.
4. The plaintiff's appeal is dismissed.
5. The total costs of litigation through the first and second trials shall be five minutes, and four minutes shall be borne by the defendant, and the remainder shall be borne by the plaintiff.
The defendant constructed a bank with a height of 5 meters on a line of 60 meters connecting each point of 1,2,3 and 4 of the annexed drawings in the 6075 square meters prior to 1,2,3075, and installed a reculator, etc. on a line of 70 meters connecting each point of 12,11,6, and5 of the annexed drawings, and restored a steel-conditioning fence with a height of 2 meters above the ground by 1500 meters to the plaintiff, and restored the steel-tank fence with a mark of 1,23,4,5,6,10,112,11 of the same drawings and (number 2 omitted) 550 square meters connecting each point of 254 square meters prior to 254 square meters, and paid the money in proportion to 7,8,9,100,000 won to the plaintiff's restoration to the original state by 20,000 won each year.
If the above land and facilities are not restored to the original state, the defendant shall pay to the plaintiff the amount of 942,00 won and 122,000 won each year from November 1, 1969 to the payment of the above money.
The judgment that the lawsuit costs shall be borne by the defendant and the declaration of provisional execution are sought.
1. (Purpose of Appeal by the Plaintiff)
The original judgment shall be modified as follows and the purport of the claim shall be stated.
2. (Purpose of Appeal by Defendant)
The part against the defendant in the original judgment shall be revoked.
The plaintiff's claim is dismissed.
The litigation costs shall be borne by the plaintiff through the first and second trials.
In full view of the contents of evidence Nos. 1 through 4 without dispute in its establishment, the result of on-site inspection at the trial and the original trial, and the whole purport of the parties' pleadings at the testimony of Non-Party 1 (except for the part subsequent to the former trust), the defendant, around October 1969, included approximately 150 square meters of the original land in the site of the plaintiff's ownership located in the Nakdong River basin and used it in the underground site, after completion of the construction as a result of which the defendant restored to the original state immediately after completion of the construction as laid underground, and was rapid under an agreement to compensate the damage caused by the construction, 15 meters in depth and 5 meters in width, 2000, 1977, 167, 1967, 167, 167, 1967, 207, 1967, 207, 167, 360, 197, 14, 17, 26, 2, 2, 2, 2, and 2, etc.
Thus, the defendant is obligated to restore this land to its original state in accordance with the above agreement and compensate the plaintiff for the damages caused by the above construction work.
Therefore, according to the testimony of Non-party 2 and the appraisal report of Non-party 2 on the restoration of the land of this case, the line connecting each point of the above drawings 1, 2, 3, and 4 among the land of this case, as shown in the annexed design, shall be he he he he he he he he he he he he he he slurd and he slurd with each point of the above drawings 6,11 and the line connecting each point of the above drawings 8,9 shall be installed by using a prop and bed, and the wire network shall be installed and the wire network shall be installed and the above drawings 1,2,3,4,5,6,7,8,9,11,12, and 566.1 meters in the area connecting each point of the above drawings 1,2,56.1 meters. There is no other evidence against this.
However, the plaintiff claims restitution against the defendant, and if the defendant fails to fulfill his/her duty of restitution, the plaintiff claims compensation for damages of KRW 706,00,00, which is the expenses for his/her restoration. However, in the case of the debtor's delay of performance, the plaintiff can only claim compensation for damages which are attributable to the plaintiff's delay of performance only when the plaintiff refuses to receive the original performance. Thus, the plaintiff's claim for restitution cannot be claimed at the same time when he/she sought the defendant's performance as the plaintiff's claim for restitution.
Next, according to the witness non-party 1's testimony as to the damages incurred by the defendant's above construction works, the 15-year course of the above recognition which was destroyed by the above construction works can be recognized as having been limited to 9,000 won per Han Mang, at the time of the loss. Since there is no counter-proof, the plaintiff suffered damages of 18,000 won due to the above construction works.
However, the plaintiff sought damages from the market price at the time of the loss of the above subject, and also can obtain net profits from the above subject amounting to 2,000 won per annum from the above subject. Since the above subject was destroyed, the plaintiff did not obtain net profits and claimed compensation for damages from the loss of profit. However, in the case of the loss of the subject, the damage caused by the loss of the object shall be determined by the exchange price at the time of the loss of the object. The price shall be deemed to include profits from the use of the property at the present and in the future, as well as profits from the use of the property at the present and in the future. Thus, the plaintiff's claim for damages from the loss of profit in addition to the damages from the price of the above subject is without merit.
In addition, 600 square meters connecting each point of the separate sheet No. 1,23,4,5,6,7,8,8,9,10,11,12 and 1 among the land of this case, the plaintiff was the land where the plaintiff cultivated the ground bean in its original state, etc. due to the defendant's above construction work, which prevents farming from being done since November 1, 1970. Thus, it is the damage of the lost profit of this case from the point of time to the completion of the soil restoration of the above land, and it is argued that the plaintiff claim damages of 120,000 won per year at a rate of 20,00 won per annum from the time of the completion of the soil restoration of the above land. Thus, the testimony of the witness non-party No. 1 of the court below (excluding the portion of trust in the above above), which is corresponding to the above argument, is not believed by the party members, and there is no other evidence to acknowledge this otherwise, rather, it can be found that the above part of the above land merely did not reach the level of agriculture.
Finally, the plaintiff asserts that the cost of KRW 200,000 was consumed in order to restore the land from the flow of the orchard after being flooded in the Nakdongdong River once every time in April, 5,6, and July 1970 due to the defendant's above construction work, but since there is no evidence to acknowledge this, the above assertion is rejected as there is no reason.
Therefore, the defendant is obligated to perform restoration work for the land of this case as above and pay damages of 18,00 won due to the loss of 2 weeks per subject as well as the restoration work for the land of this case to the plaintiff. Thus, the plaintiff's claim of this case is reasonable within the scope of the above recognition, and thus it is unfair to accept this claim and dismiss the remainder. The original judgment has altered the plaintiff's appeal in accordance with the defendant's appeal, and the plaintiff's appeal is without merit. Thus, the plaintiff's appeal is dismissed pursuant to Article 384 of the Civil Procedure Act and the provisional execution declaration is not subject to the proviso of Article 3 (1) of the Act on Temporary Measures for Civil Procedure, and it is so decided as per Disposition by applying Articles 95, 89, and 92
[Attachment Omission]
Judges Choi Hon-ro (Presiding Judge) Kim Jong-ju