[손해배상청구사건][고집1968민,377]
A. Requirements for exercising creditor's subrogation right
(b) The time of standards for calculating damages due to impossibility of performance;
A. If a land belonging to another person's right is owned by it and the registration of ownership transfer was cancelled due to the invalidity of cause after it was sold in advance to the last owner, the last owner can exercise the creditor's subrogation right by the intermediary buyer if the intermediate registrant proves that the intermediate registrant is insolvent.
B. In the event that the contract is cancelled on the ground that the real estate sales contract was impossible, and the compensatory damages are sought in lieu of performance, the time of cancellation of the contract shall be based on the time of termination and the amount of compensation shall be determined on the basis
Articles 404 and 393 of the Civil Act
Korea National Housing Corporation
Defendant
Seoul Central District Court (66A1215) in the first instance trial (Supreme Court Decision 66A1215)
Supreme Court Decision 67Da2440 Decided January 23, 1968
(1) Revocation of the original judgment shall be revoked.
(2) The defendant shall pay to the plaintiff 27,054,700 won with an annual interest rate of 5% from March 4, 1966 to the date of full payment.
(3) The plaintiff's remaining claims are dismissed.
(4) All costs of the lawsuit are assessed against the defendant.
(5) Main Paragraph (2) can be provisionally executed.
The plaintiff shall revoke the original judgment.
The defendant is demanding that the plaintiff pay the amount of KRW 27,864,00 and the amount at the rate of five percent per annum from March 4, 1966 to the date of full payment.
(1) Since Gap evidence Nos. 1-2, 4, 5 (each copy of the register), 2-1 (real estate sales contract), 3-2, 1-3 (each judgment) and Gap evidence Nos. 2 (Delegation Form) which can be recognized as genuine by the testimony of the non-party No. 1, and the above witness No. 1, 2, and 3 were purchased from the above non-party No. 5 to the above non-party No. 97, and the ownership transfer registration was not accepted by the plaintiff No. 15 on December 15, 1956. The plaintiff purchased the real estate listed in the separate sheet from the defendant No. 5 and the non-party No. 1 and the non-party No. 5 on December 15, 1956, and purchased the ownership transfer registration from the above non-party No. 3 and the non-party No. 6 on Sep. 1, 1958.
In this sense, the defendant and the non-party 4, etc. are presumed to have sold the real estate to the non-party 6 and the non-party 3, and the non-party 7 had sold the real estate to the plaintiff as a seller, and the defendant and the non-party 4 should be presumed to have concluded a contract with the trust of the former as owner at the time of concluding the sale contract on the real estate in this case as seen above. Thus, in relation to the latter, the above real estate did not know that the above real estate did not belong to their own ownership. Further, in light of the fact that the non-party 4 was rendered a favorable judgment as above, there is no special circumstance that the defendant and the non-party 4 had a relation that the non-party 6 and the non-party 3 acquired the ownership of the real estate in this case and transferred it to the plaintiff, as long as there was no special circumstance that the non-party 1
(2) The plaintiff, who is the non-party 7 and the non-party 3, the non-party 4, and the non-party 6, had the plaintiff purchase the real estate as if they were not the property devolving upon the real estate. As such, the plaintiff had the plaintiff purchase it by deceiving the plaintiff who knew of the fact, and caused damages equivalent to 27,864,00 won equivalent to the current market price of the above real estate. Thus, the defendant is obligated to compensate the plaintiff. However, even if all proof of the plaintiff's submission of the above money is proved, the defendant's or the non-party et al. conspired with each other, and let the plaintiff purchase the real estate. Thus, the above assertion is groundless
(3) Even if the plaintiff did not so, the defendant is liable to compensate the non-party 3 and 6 to the non-party 1, and the above non-party 7 is also liable to the plaintiff. Thus, the plaintiff is served to the non-party 7 as a copy of this case so that the plaintiff expressed his intention to cancel the above sales contract between the plaintiff and the non-party 7, and the non-party 3 and the non-party 6 (the non-party 6 died on December 14, 1962) as the non-party 3 and the non-party 6 (the non-party 8,9,10,11,12)'s obligee's obligee's obligee's obligee's right to cancel the sales contract and the non-party 3 and the non-party 6's obligee's right to claim damages as the non-party 1 and the non-party 4 (the non-party 4 died on April 1, 1958)'s right to claim damages as the non-party 1's obligee's right to claim damages.
(4) The plaintiff filed a claim for damages amounting to KRW 27,864,00 with respect to the scope of compensation. If the right which was the object of the sale belongs to another person, it is reasonable for the purchaser who did not know that the right which was the object of the sale belongs to the seller when the seller is unable to acquire the right and transfer it to the buyer, to compensate the seller for the same economic benefits as the seller completely performed the contract. The damages include not only the buyer's losses but also the loss of the profit which the buyer could have accrued. The plaintiff's claim for compensation for transfer which was concluded between the plaintiff is impossible to execute the contract, and as such, the plaintiff's claim for compensation for transfer which was made for the cancellation of the contract, the amount of compensation should be determined at the market price of the object at the time of the cancellation of the contract based on the market price at the time of the cancellation of the contract. The plaintiff's delivery of a copy of the real estate as at March 3, 196 at the market price at the trial of the non-party 14, 270% and 46.
(5) In the same way, the Plaintiff’s principal claim is justified within the scope of the above recognition, and the remainder of the claims are without merit, and thus, the original judgment with different purport is unreasonable, and the appeal is with merit, and thus, the original judgment is revoked. As to the pronouncement of provisional execution under Articles 96, 92, and 89 of the Civil Procedure Act, Article 199 of the Act on Temporary Measures for Civil Procedure is applied to the determination of provisional execution under Article 3 of the same Act.
[Attachment List omitted]
Judges Hong Nam-nam (Presiding Judge)