2017Da202050 Damages (ar)

Plaintiff

Law Firm Sun-cheon, Counsel for the defendant-appellant

Attorney Lee Jong-soo et al.

Korea

Government Legal Service Corporation (Law Firm LLC)

[Defendant-Appellee] Plaintiff 1 and 2 others

Seoul Central District Court Decision 2016Na54727 Decided December 9, 2016

April 8, 2021

The appeal is dismissed.

The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Factual basis

The reasoning of the lower judgment and the record reveal the following facts.

On July 31, 2012, the Plaintiff purchased 808 square meters (hereinafter referred to as “instant land”) from the Korea Asset Management Corporation, which is an institution entrusted with the Defendant’s business, for KRW 57,368,00,00 and registered the transfer of ownership on September 25, 2012.

On March 19, 2014, the Plaintiff donated the instant land to the Nonparty, who is an son, and obtained a building permit in the name of the Nonparty in order to build a new building on May 9, 2014, and changed the land category from “land” to “site” on September 15, 2014.

On May 2014, the Plaintiff discovered that approximately 331 tons of waste, such as waste synthetic resin and waste concrete, were buried in approximately 1-2 meters in depth. From May 2014 to September 2014, the Plaintiff spent KRW 60,925,170 to treat waste.

2. Whether liability for damages arises (ground of appeal Nos. 1 and 2)

A. Where the subject matter of sale is not equipped with the objective nature or performance expected in light of the transaction norms, or where the subject matter of sale is not equipped with the nature scheduled or guaranteed by the parties, the seller is liable to indemnify the buyer for the defect pursuant to Article 580 of the Civil Act (see Supreme Court Decision 98Da18506, Jan. 18, 200).

B. The lower court determined that the liability for damages arising from the warranty against defects was recognized on the following grounds.

(1) Considering the content, quantity, location, and disposal cost, etc. of buried wastes, the foregoing waste contained in the instant land constitutes a defect of the quality or condition that is anticipated to be ordinarily equipped with the subject matter of sale. Therefore, the Defendant is liable to compensate the Plaintiff for the warranty liability.

(2) The Defendant asserted that the instant land does not constitute a defect even if there was a waste, since it was no problem for the Plaintiff to use the land as a "land category" at the time of the sales contract, and the Defendant did not guarantee that it could be used as a "site". However, it is difficult to

The land of this case may be excavated in order to cultivate plants even under the dry field.

In light of the location and quantity of buried wastes, it seems that the Plaintiff’s use of the land as dry field is likely to have a significant impact on the cultivation of plants. The Plaintiff’s change the land category of the instant land from “B” to “site” cannot be assessed differently due to the reason that the Plaintiff changed the land category from “B” to “site.”

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower judgment did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the concept of defects and the timing of determination, burden of proof, etc.

3. Scope of damages (Ground of appeal Nos. 3 and 4)

A. Where a defect occurs in the subject matter of sale, the buyer’s warranty liability and liability for nonperformance are recognized concurrently by a separate title (see Supreme Court Decision 2002Da51586, Jul. 22, 2004). In this case, barring any special circumstance, the expenses for repairing the defect constitutes the seller’s warranty liability and damages arising from the seller’s default liability. Therefore, if a waste is buried in the land subject to sale and the buyer incurs expenses for disposing of wastes, the buyer may claim the expenses due to nonperformance pursuant to Article 390 of the Civil Act, and the buyer may claim damages arising from warranty liability pursuant to Article 580(1) of the Civil Act.

B. The lower court determined as follows.

(1) The Plaintiff sustained losses corresponding to the cost of waste disposal due to a defect in the instant land filled in. The Defendant is obligated to pay the Plaintiff the cost of waste disposal, 60,925,170 won, as compensation for damages, and the delay damages.

(2) The Defendant asserted that there is no proximate causal relation between the cost of the Plaintiff’s payment and the defect of the land, on the grounds that the Nonparty was aware of the fact that the Plaintiff donated the instant land to the Nonparty, and that he did not bear the liability for warranty.

The right to claim damages due to the defect liability arises when the buyer takes over the object of sale. The plaintiff's right to claim damages occurred when the land was delivered from the defendant, and thereafter the plaintiff donated the land to the non-party, the right to claim damages is extinguished or not transferred to the donee.

(3) The Defendant asserts that liability for damages should be limited. However, it cannot be deemed that the Plaintiff was negligent in knowing or not knowing the existence of a waste at the time of concluding a sales contract, and there is no evidence to deem that the damage sought by the Plaintiff was calculated excessively as the cost of waste disposal.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the lower judgment did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on the concept of damages and the scope of damages, contrary to what

4. Conclusion

The Defendant’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

The presiding Justice shall mobilization by the presiding Justice

Justices Kim Jae-sik in charge

Justices Min Min-young

Justices Noh Tae-ok