[손해배상청구사건][고집1973민(2), 171]
Where the sale of real estate owned by another person becomes impossible, the time to calculate the amount of damages incurred therefrom.
The Plaintiff sold real estate to the Defendant and completed the registration of ownership transfer, but thereafter, the Nonparty, the real right holder of such real estate, was determined to win the lawsuit against the Plaintiff and the Defendant for cancellation of ownership transfer registration and became final and conclusive in favor of the Nonparty, and the Plaintiff’s obligation to transfer ownership transfer from the above sale to the Defendant was impossible unless there are special circumstances to the contrary. The calculation of damages against the Defendant should be based on the market price of such real estate at the time when the Nonparty’s judgment in favor of the Nonparty’s claim for cancellation of ownership transfer registration becomes final and conclusive.
Article 570 of the Civil Act
Supreme Court Decision 66Da2618 delivered on May 18, 1967 (Supreme Court Decision 8577Da8577, Supreme Court Decision 15Du211 delivered on June 11, 196, and Article 570(3)463 of the Civil Act
Plaintiff
Defendant
Seoul Central District Court (72 Gohap648) in the first instance trial (72 Gohap648)
1. The defendant's appeal is dismissed.
2. The original judgment is altered by the plaintiff's partial withdrawal of the lawsuit as follows.
The defendant shall pay to the plaintiff the amount of KRW 1,644,00 with 5% interest per annum from January 11, 1973 to the date of full payment.
3. The costs of appeal are assessed against the defendant.
(The plaintiff's attorney shall reduce the claim in the trial)
The defendant shall pay to the plaintiff the amount of KRW 1,644,00 and the amount equivalent to five percent per annum from the following day from the day of service of the complaint to the day of full payment.
The costs of lawsuit shall be borne by the defendant in both the first and second trials and a declaration of provisional execution.
(Defendant-Appellant)
The original judgment shall be revoked.
The plaintiff's claim is dismissed.
All the costs of lawsuit shall be borne by the plaintiff.
1. Although there is no dispute over the establishment of Gap evidence Nos. 1 and 2, Gap evidence Nos. 3, Eul evidence Nos. 4-1 and 2, the testimony of non-party Nos. 1 and witness Nos. 2, and the whole purport of the pleading, which are non-party Nos. 2 and 3, the real estate of this case is registered in the name of the defendant on the register as to 822 of the land No. 707, Seongbuk-gu, Seongbuk-gu, Seoul, and the transfer of ownership was registered on July 9, 1968 under the name of the plaintiff No. 4, the lawsuit for cancellation of the above registration was filed against the plaintiff No. 1 and the defendant No. 5, and the plaintiff's assertion that the above registration of transfer of ownership was not registered in the name of the plaintiff No. 1 and the defendant No. 1 and the defendant's assertion that the above real estate was not registered in the name of the non-party No. 1 and the defendant No. 1 and the defendant's. 158. 16.
Therefore, according to the above facts of recognition, in this case where the defendant sold the real estate of this case belonging to another person to the plaintiff, and there is no other evidence as to the circumstances under which the plaintiff can acquire and transfer the ownership of the real estate of this case to the plaintiff in this case, the defendant's obligation to transfer the ownership of the real estate of this case to the plaintiff in this case is based on the judgment in favor of the non-party 4 as seen above, and thus the plaintiff and the defendant's registration of transfer of ownership was cancelled as of January 21, 71.21. Accordingly, the above sales contract between the plaintiff and the defendant was lawfully cancelled as of January 10, 1973, because the above sales contract between the plaintiff and the defendant was delivered to the defendant in so far as it is obvious that it was the date when the contract was delivered to the defendant. Thus, the defendant
2. Damages;
As to the scope of damages of this case to be compensated by the Defendant to the Plaintiff, the seller’s obligation to compensate for damages under Article 570 of the Civil Act is both parties to the sale and purchase, and the seller’s obligation to compensate for damages to the buyer of a seller particularly recognized by the law in order to ensure fairness in a commercial contract. As such, the seller’s obligation to compensate for damages under the same provision is determined on the basis of the market price of the object of sale at the time of the impossibility of performance of the exhibition contract. In full view of Nonparty 7’s appraisal result at the trial appraiser at the time of the cancellation of the previous registration of ownership of the Plaintiff’s real estate as of November 1, 1971, the fact that the normal market price of the real estate at issue at the time of the cancellation of the previous registration of ownership was 2,00 won. Accordingly, the Defendant is obligated to compensate the Plaintiff for the above real estate price at the time of the above real estate market price.
3. If the defendant is obligated to pay to the plaintiff the damages for delay in accordance with the civil legal interest rate of 5% per annum from January 11, 1973 to the date following the day when the part of the case guested to the defendant was delivered to the defendant, as requested by the plaintiff, the defendant is obligated to pay the plaintiff the damages for delay at the rate of 1,64,00 won per annum from the day when the part of the case was delivered to the defendant. Thus, the plaintiff's claim at the court below is reasonable, and the judgment below is consistent with the conclusion with the plaintiff except for the case where the plaintiff changed the part of the lawsuit to the part of the court below to the part of the court below, and the defendant's appeal is groundless, and the costs of appeal are
Judges Lee Ho-ho (Presiding Judge)