[손해배상(기)][공1994.11.15.(980),2946]
The case holding that the double payment for the portion in which the actual obligation is not accrued, shall not be deducted from the purchase price, on the ground that the amount of the obligation stated in the attached Form of the sales contract is merely a set of a sum of the obligations, the amount of the obligation is determined by agreement between the seller and the buyer, and the purchaser agreed to deduct the amount of the obligation paid by the purchaser from the purchase price
In selling all of the shares of a company owned by a seller to a purchaser, if the company's debt was stated in the attached Form of the sales contract, but it is recognized that the purchaser agreed to deduct the amount paid for repayment of the confirmed debt from the sales price, as a group of the total amount presented by the seller after consultation with both parties, it shall not be deemed that the purchaser agreed to deduct the amount paid for repayment from the sales price, even if there is no debt corresponding to a part of the amount paid for repayment, and thus, it shall not be deemed that the purchaser agreed to deduct the amount paid from the sales price, on the ground that the purchaser's double payment of the amount paid out of the debt stated in
Article 105 of the Civil Act
Plaintiff 1 and 3 others, Attorneys Yang Young-young, Counsel for the plaintiff-appellant
Defendant 1 and five defendants et al., Counsel for the defendant-appellant
Gwangju High Court Decision 92Na8148 delivered on July 30, 1993
Of the part of the judgment below against the plaintiffs, the gold 50,000,000 won and damages for delay shall be reversed, and this part of the case shall be remanded to the Gwangju High Court. The remaining appeals by the plaintiffs and the appeals by the defendants shall be dismissed.
The costs of appeal dismissed shall be assessed against each party.
1. We examine the grounds of appeal by the plaintiffs' attorney.
A. According to the reasoning of the judgment below, the court below acknowledged that the above contract price was 00,000 won for the above 80,000 won for the above 50,000 won for the above 80,000 won for the above 198,00 won for the defendant company's loan and 50,000 won for the above 80,00 won for the above 80,00 won for the above 10,000 won for the above 50,00 won for the above 10,000 won for the defendant company's loan and 50,000 won for the above 80,00 won for the above 10,000 won for the above 50,00 won for the above 10,00 won for the defendant company's loan and 10,000 won for the above 50,000 won for the defendant company's loan and 10,000 won for the remaining 0,000 won for the defendant's loan.
However, the evidence No. 2 (certificate) prepared between the non-party company and the Punglim industry as of August 27, 1987 is that the balance of the construction price for the Punglim industry was KRW 1,236,059.00,000 reduced from KRW 1,186,000,000, and the non-party who directly received KRW 50,000,000 as a witness of the first instance court and the above KRW 50,000 as a witness of the Punglim industry, and the non-party testified that he received KRW 50,00,000 as a construction price. The evidence No. 2 (certificate) was prepared by the Punglim industry as the creditor, and since the non-party witness was the above non-party, the plaintiffs did not notify the above repayment to the defendants at the time of the above sales contract and did not present evidence No. 2 to the defendants. 2, the court below rejected the plaintiff's evidence without any reasonable ground of appeal.
In addition, according to the records, the plaintiffs and the defendants are acknowledged to have agreed to deduct the amount of debt of the non-party company listed in the separate sheet of the sales contract of this case from the sales price after the plaintiffs agreed to pay the amount of debt for the settlement of the purchase price. If the facts are the same, it cannot be deemed that the defendants agreed to deduct the amount of debt for the settlement of payment from the sales price of this case until the voluntary payment is not established because there is no obligation for part of the amount paid for the settlement. Thus, the above double payment cannot be deducted from the sales price of this case. Although the plaintiffs did not notify the defendants of the above payment, the amount of debt of the non-party company listed in the separate sheet of the original sales contract of this case is merely the amount of the plaintiffs' presentation, so long as the plaintiffs agreed to pay the debt after consultation with both parties, the above amount of debt of the non-party company shall not be deducted from the sales price of this case, and the plaintiff shall not bear any disadvantage due to such double payment under the good faith principle or the principle of fairness. Thus, the court below erred in the judgment below's misapprehension of the above.
B. Of the part against the plaintiffs in the judgment below, the plaintiffs are dissatisfied with the amount of 51,581,850 won and damages for delay thereof. However, with respect to the remaining part of the appeal except the above part, the appellate brief was not filed within the prescribed period, and the petition of appeal does not contain any indication in the grounds of appeal.
2. We examine the defendants' grounds of appeal.
The judgment of the court below on the facts pointed out by the theory of lawsuit is justified in light of the evidence relations and records presented by the court below, and there is no error of law such as the theory of lawsuit in the judgment below. All arguments are without merit.
3. Therefore, among the part against the plaintiffs in the judgment of the court below, the case is reversed and remanded to the court below for a new trial as to this part. The remaining appeals by the plaintiffs and the appeals by the defendants are without merit. The costs of appeal as to the dismissed part are assessed against each losing party. It is so decided as per Disposition by the assent of all participating Justices who reviewed the appeal.
Justices Cho Jae-young (Presiding Justice)