[손해배상청구사건][고집1980민(2),423]
Whether the provision on the seller's liability for warranty due to the sale of another person's right is applied more preferentially than the provision on the mistake in the general provisions of the Civil Act.
In a case where a public official has received a bribe, forged or fraudulently prepared a related document, made a registration of ownership transfer in the name of the non-party, again made the registration of ownership transfer in the name of the plaintiff and the defendant, and thus the State recovered it from the last name on the registry, the defendant, who is the seller at the time of the conclusion of the contract, also entered into a sales contract with the defendant who is the seller, knowing that the land was state-owned at the time of the conclusion of the contract, and thus, the provision on the seller's liability for warranty due to the sale of another person's right should be applied more preferentially than the provision on mistake in the general provisions of the Civil Act. Therefore, in this case
Article 109 of the Civil Act, Article 569 of the Civil Act, Article 570 of the Civil Act, Article 571 of the Civil Act
Plaintiff
Defendant
Sungdong Branch of the Seoul District Court (79 Gohap1738)
The appeal is dismissed.
Expenses for appeal shall be borne by the defendant.
The judgment of the court below and the declaration of provisional execution that the defendant shall pay to the plaintiff the amount of KRW 14,487,600 and the amount at the rate of 5 percent per annum from the day after the day when the notice was served to the plaintiff in this case
The part against the defendant ordering payment in excess of 7,924,00 won in the original judgment shall be revoked and the plaintiff's claim against this part shall be dismissed.
The value of Non-Party 1 was originally registered at 205 square meters prior to 70, and 205 square meters prior to 197.10, and the non-party 2 was transferred to the non-party 4. The non-party 1 and the non-party 2 were transferred to the non-party 7. The plaintiff purchased the land from the defendant 7,924,00 won on July 28, 197, and then again sold the land and the building again to the non-party 4 and completed the registration of ownership transfer pursuant to the above 70. The non-party 1 and the non-party 2 (the non-party 1 and the non-party 2) were purchased from the non-party 1 and the non-party 4 were the non-party 1 and the non-party 2 (the non-party 1 and the non-party 4) were the non-party 1 and the non-party 2 (the non-party 1 and the non-party 4) were presumed to have no dispute over the original purport of the non-party 1 and the statement.
Therefore, the purchase and sale of this case between the plaintiff and the defendant belongs to another person and the seller is unable to acquire the right and transfer it to the buyer. Thus, the defendant, the seller, is liable to compensate the plaintiff for damages caused by the seller, and the amount of damages to be compensated is, in principle, equivalent to the market price at the time when the performance is impossible. In this case, when the country recovers the above land from the non-party 4, the final titleholder, the defendant's performance is impossible, and the amount of damages to be compensated by the defendant is also equivalent to the market price at the time of the recovery ( therefore, the amount equivalent to the market price at October 31, 1973 where the ownership transfer registration was made in the non-party 1 with respect to the land in this case or the amount of KRW 7,924,00 paid by the plaintiff to the defendant as the price at the time of the above purchase and sale of the land is not reasonable).
On the other hand, the defendant's attorney at the time of the conclusion of the sale contract between the plaintiff and the defendant at the time of the conclusion of the sale contract after knowing that the land of this case was owned by the state, and thus, the above sale contract was cancelled due to mistake and the cancellation of the contract will be exempted from the defendant's warranty liability. Thus, the provision on the seller's warranty liability due to the sale and purchase of another person's right under the Civil Act should be applied more preferentially than the provision on mistake in the general provisions of the Civil Act. Thus, in this case, the defendant's defendant cannot assert the cancellation based on mistake. Accordingly, the above assertion by the defendant's attorney at the time of the conclusion of the contract is without merit.
Therefore, the plaintiff's claim for the payment of 14,487,60 won, which is damages incurred by the plaintiff to the non-party 4 within the market price at the time of recovery, and damages for delay at the rate of 5% per annum from February 23, 1980 to the date of full payment, which is obvious in the record that it is the next day for the delivery of the complaint of this case, shall be accepted. The judgment below is just in this conclusion, and the defendant's appeal against this is dismissed as there is no reason, and it is so decided as per Disposition by the application of Articles 95 and 89 of the Civil Procedure Act with respect to the cost of lawsuit.
Judges Lee Jae-soo (Presiding Judge)