[손해배상청구사건][고집1968민,99]
Criteria for calculation of damages due to impossibility of performance in the sale of another person's right;
The scope of the seller's liability for damages in the sale of another person's right is not only the trust interest, but also the economic interest that is the same as the contract was completely performed. In such a case, the amount of damages is determined based on the market price at the time when the right which was the object of the sale becomes impossible by acquiring the right to be the object of the sale in principle, like the time when the general obligation is determined due to the default of the obligation
Article 570 of the Civil Act
Supreme Court Decision 66Da2618 delivered on May 18, 1967 (Kakadd. 85777, Supreme Court Decision 15Du277 delivered on March 13, 1973, Supreme Court Decision 72Da2207 delivered on March 13, 197 (Dahd. 10412, Supreme Court Decision 21Nu135 delivered on April 21, 197, Supreme Court Decision 393(32)389 of the Civil Act)
Plaintiff
Defendant
Seoul Central District Court (66A7164) of the first instance trial (Supreme Court Decision 66Da7164)
(1) The original judgment is modified as follows.
(2) The defendant shall pay to the plaintiff 1,400,000 won with an annual interest rate of 5% from August 10, 1966 to the full payment day.
(3) All the costs of lawsuit are assessed against the defendant in the first and second trials.
The plaintiff is seeking the revocation of the part against the plaintiff in the original judgment and the sentence of provisional execution, such as the order (2), (3), from the original judgment.
On October 27, 1962, the Plaintiff filed a lawsuit against the Plaintiff on the procedure for the registration of cancellation of ownership transfer and the request for delivery of the above land, etc., and lost the Plaintiff and the Defendant, etc. in the lawsuit, and the Plaintiff purchased at KRW 137,00 the above land, etc. at KRW 137,00 and KRW 543,00 prior to the same (number 2 omitted), Dong (number 3 omitted), Dong (number 3 omitted), and the same (number 4 omitted), and paid the price in full on the above land, etc. thereafter, Nonparty 1, 2, etc. purchased at KRW 137,00 and paid the price in full. Accordingly, according to the fact that the Plaintiff cannot be seen as being liable for damages arising from the above real estate purchase and sale of the above real estate due to the lack of knowledge of the Plaintiff’s right at the time of the conclusion of the contract, the Plaintiff cannot be seen as being subject to a dispute over the above real estate sale and purchase by the Defendant.
Therefore, the scope of seller's liability for damages is not only trust interest, but also economic interest that is the same as that of the contract completely performed. In such a case, the amount of damages should be determined on the basis of the market price at the time when the right which became the object of the sale was acquired and performed impossible in principle like the time when the contract was finally established for the amount of damages due to non-performance of general obligation. Therefore, under the premise that the above sale contract cannot be performed, the defendant is presumed to have no intention to recover ownership of the object of sale and transfer it to the plaintiff. If the above sale contract was omitted due to non-performance of obligation, the above sale contract should be deemed to have become final and conclusive when the plaintiff lost ownership due to the invalidity of cause. Accordingly, the amount of damages should also be determined on October 25, 1965 by the appraisal appraiser at the market price at the time of the above sale as of October 25, 1965.
In this case, the defendant is obligated to pay the plaintiff the above 2,497,300 won. However, within the plaintiff's claim, the defendant is obligated to pay the plaintiff the above 1,400,000 won and the following day after gushe is made up to the plaintiff with the annual rate of 5% from August 10, 1966 to the full payment date. Thus, the plaintiff's claim for the principal lawsuit is justified and it should be accepted. Thus, the original judgment is unfair and different from this purport is just, and the original judgment is decided to be modified, and Articles 96 and 89 of the Civil Procedure Act are applied to the cost of lawsuit, and the provisional execution is not attached to the plaintiff, and it is so decided as per Disposition.
Judges Cho Jong-dae (Presiding Judge)