[손해배상청구사건][고집1972민(1),497]
When calculating the amount of damages in the seller's liability for warranty caused by the sale of other person's rights.
If the buyer does not know that ownership is not attributed to the seller at the time of the contract, and the buyer claims damages in lieu of the original obligation without cancelling the contract when the buyer cannot transfer the right to the buyer, it is reasonable to calculate the amount of compensation by the price at the time of impossibility of transfer
Article 570 of the Civil Act
Plaintiff
Defendant
Seoul Central District Court (71 Gohap4285) in the first instance trial
The original judgment shall be revoked.
The defendant shall pay to the plaintiff 1,508,662 won with 5% interest per annum from August 8, 1971 to the full payment.
The plaintiff's remaining claims are dismissed.
All the costs of litigation shall be borne by the defendant through the first and second trials.
Only the above paragraph 2 can be provisionally executed.
The plaintiff's attorney shall pay to the plaintiff 1,521,762 won with 5% interest per annum from the day following the delivery of the copy of the complaint to the full payment.
The judgment that the lawsuit costs should be borne by the defendant and the declaration of provisional execution were sought.
The plaintiff's attorney shall revoke the original judgment.
The defendant shall pay to the plaintiff 1,521,762 won with an annual interest rate of 5% from the next day from the service of the copy of the complaint to the full payment system.
The judgment that all the costs of lawsuit are borne by the defendant through the first and second trials and the declaration of provisional execution were sought.
In light of the above facts as to the registration of ownership transfer of the non-party 1 and the non-party 1 and the non-party 2, the non-party 1 and the non-party 4 and the non-party 1 and the non-party 1 and the non-party 4 and the non-party 1 and the non-party 1 and the non-party 1 and the non-party 2 were the non-party 1 and the non-party 1 and the non-party 2 were the non-party 1 and the non-party 4 and the non-party 1 and the non-party 2 were the non-party 1 and the non-party 4 and the non-party 1 and the non-party 2 were the non-party 1 and the non-party 1 and the non-party 4 and the non-party 1 and the non-party 1 were the non-party 1 and the non-party 2 were the non-party 1 and the non-party 1 and the non-party 2 were the non-party 1 and the counter-party 1 and the counter-party 2.
Therefore, in this case where the plaintiff knew that he did not belong to the defendant at the time of the contract, and there is no assertion and proof that the plaintiff does not have the right to ownership, the plaintiff can claim damages against the defendant pursuant to Article 570 of the Civil Act. The plaintiff can claim damages in lieu of the contract without cancelling the contract as in the case of non-performance of the general obligation, and all damages due to non-performance of the obligation. Thus, the defendant has the obligation to compensate the plaintiff for the compensatory damages due to the non-performance
Therefore, it is reasonable to consider the amount of compensation for the transfer of a right in the sale of a right by another person without cancelling the contract when the seller is unable to acquire the right and transfer it to the buyer, and it is reasonable to calculate the amount of compensation by the price at the time of impossibility of transfer. Therefore, it is reasonable to see that the time of impossibility of transfer in this case is the time of impossibility of transfer at the time of cancellation of the registration of transfer of ownership on January 7, 1971. The price of the present real estate at the time of the contract is 1,457,50 won equivalent to the price at the time of the contract, unless there
In addition, in full view of the contents of No. 5 (Account) No. 5 (Account Statement) which is recognized to be genuine by the testimony of Nonparty 2 by the witness of the court below and the testimony of the witness, the plaintiff may recognize that the plaintiff requested the non-party 8, who is a judicial clerk at the time of applying for the registration of transfer of ownership without dispute as to October 6, 1969 to transfer the ownership registration tax amounting to KRW 19,522, KRW 3,010, KRW 100, KRW 250, KRW 13,100, and KRW 13,000, KRW 13,100 for the self-supporting savings to the Dong on October 6, 1969.
In addition, according to the contents of Gap evidence No. 4 (Receipt) without dispute over the establishment of the petition, it can be acknowledged that the plaintiff paid the acquisition tax of KRW 26,030 on November 25, 1969 to the National Treasury of Seoul Metropolitan Government for Commercial Bank. Thus, the amount of damages that the plaintiff may seek shall be calculated as KRW 1,508,662.
Thus, the defendant is obligated to pay to the plaintiff damages for delay under civil law at a rate of five percent per annum from August 8, 1971 to the full payment system, on the record that it is the date of delivery of the complaint to the defendant as to the damages incurred by the impossibility of transfer and the date of delivery of the complaint to the defendant.
Therefore, the plaintiff's claim of the principal lawsuit is reasonable within the above scope of recognition, and the remainder is groundless and dismissed. Accordingly, the original judgment dismissing the plaintiff's claim in whole with different conclusions is unfair, and the plaintiff's appeal is justified.
As to the burden of litigation costs, Article 96, the proviso of Article 89 and the proviso of Article 92 of the Civil Procedure Act shall be applied to the provisional execution declaration, and Article 199 of the same Act shall be applied to the provisional execution declaration.
Judges Boh-su (Presiding Judge) (Presiding Judge)