Where the price of the land reserved for replotting has been changed after the obligation to register the transfer of ownership to the land reserved for replotting has become impossible, the scope of compensation for such damage.

The seller’s obligation to register ownership transfer of the subject matter of sale is, in principle, equivalent to the market price of the subject matter at the time of the impossibility of performance, and even if the price of the subject matter was at the time of the impossibility of performance, damages arising therefrom are due to special circumstances, and thus, a seller may claim damages at the same price only if he/she knew or could have known such special circumstances at the time of impossibility of performance. This legal doctrine is established in the Supreme Court. It does not change even if the transferred land is a specific land after the scheduled replotting or the determination of replotting, and even if the payment of compensation is delayed, it does not enable the buyer to claim damages at the market price at the time of the closing of argument in fact-finding as well as damages equivalent thereto.

Article 393 of the Civil Act

Supreme Court Decision 74Da1872 delivered on May 27, 1975 (Gong1975, 8542), Supreme Court Decision 86Meu2549 delivered on June 23, 1987 (Gong1987, 1223), Supreme Court Decision 95Da22337 delivered on October 13, 1995 (Gong195Ha, 3772)

Plaintiff 1, et al., the taking-off of lawsuit by the deceased Nonparty 1 (Law Firm Il, Attorneys Kim Chungcheongnam-jin et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other (Attorney Park Jong-young, Counsel for the defendant-appellant)

Daejeon High Court Decision 93Na6605, 94Na2488 delivered on October 27, 1994

The judgment below is reversed. The case is remanded to Daejeon High Court.

The grounds of appeal are examined.

1. According to the reasoning of the lower judgment, the lower court recognized the following facts by comprehensively taking account of the evidence adopted in its judgment.

The Defendant (Counterclaim Plaintiff; hereinafter the Defendant) was 1,195/16,793 shares of the deceased non-party 1 on March 27, 198, and the non-party 2 were 5,08 shares of the above non-party 1 and the non-party 2 were 5,080 shares before the split-off that were owned by the non-party 1 and the non-party 1 and the non-party 2 were 5,00 shares of the above non-party 1 and the non-party 3 were 5,00 shares of the above non-party 1 and the non-party 2 were 9,00 shares transfer registration of the above non-party 1 and the non-party 1 were 5,00 shares of the above non-party 1 and the non-party 2 was 5,00 shares of the above non-party 1 and the defendants were 1,000 shares of the above forest and land were 9,000 shares of the above land.

Based on the above factual basis, the lower court determined as follows.

Since the above deceased non-party 1 did not obtain the consent on the division of land from the non-party 2 who is co-owner within one year from the date of conclusion of the sales contract, as well as transferred part of the shares of the subject matter of this case to the non-party 3, the sales contract was concluded on March 27, 1985 after one year has passed since the conclusion of the sales contract. Therefore, the plaintiffs are liable to compensate the damages suffered by the defendants due to the impossibility of performing the obligation to register the transfer of ownership of the subject matter of this case as co-property heir of the deceased non-party 1 as co-property heir of this case. Meanwhile, the defendants are liable to register the cancellation of the provisional registration of this case as to the subject matter of this case to the plaintiffs after

However, unless there are special circumstances, damages suffered by the Defendants due to nonperformance of a sales contract shall be the amount equivalent to the market price of the real estate at the time of nonperformance. However, if, at the time of the sales contract, the seller, the seller, Nonparty 1 knew or could have known the special circumstances that the Defendants would purchase and resell the above land at the time of the sale contract, or newly construct and sell the above land on its ground, the Plaintiffs are obligated to compensate for damages incurred by failure to achieve the above purpose as special damages. In full view of the developments leading up to the conclusion of the sales contract, the purpose and contents of the sales contract, the timing and method of payment, etc. as seen above, it is reasonable to deem that Nonparty 1, the seller, knew or could have known that the Defendants would purchase the subject matter of the sale in this case at the time of the purchase contract, after the land substitution confirmation by the land substitution and rearrangement project became final and conclusive, the Plaintiffs were liable to compensate for all damages sustained by the Defendants due to the Defendants by losing the profits that they would obtain by constructing the above subject matter of sale in this case.

2. The court below determined that the duty to transfer ownership to the Defendants of the deceased non-party 1 under the above sales contract of this case was confirmed to be impossible on March 27, 1985, when one year has elapsed in accordance with the above agreement. The phrase of the above special agreement is clear according to the wording of Paragraph 5, which is a document annexed to the No. 1 (sales Contract). The phrase of the above special agreement is to solve the seller's responsibility when co-owners raise an objection to the sale and purchase real estate. However, if the seller fails to resolve the sale, the seller shall immediately pay to the buyer the provisional registration procedure of Dong-dong (Dong Dong (Dong Dong), which is his own other co-ownership, and if it becomes impossible to transfer ownership of this land, the provisional registration is to be registered immediately. The seller's duty to register ownership transfer becomes final for one year since it becomes impossible to register ownership transfer, which is the date of non-party 2's provisional registration, and if it becomes impossible to register ownership transfer to the seller due to the expiration of the above provisional registration procedure, it is justified.

However, as a matter of principle, the amount of damages suffered by the buyer due to the impossibility of the seller's obligation to transfer ownership of the subject matter of sale is the market price at the time of the impossibility of performance. Even if the price of the subject matter was due to special circumstances, damages arising therefrom may be claimed for damages due to the seller's impossibility of performance (see, e.g., Supreme Court Decisions 90Da5672, Dec. 7, 1990; 92Da20163, May 27, 1993; 95Da22337, Oct. 13, 1995; 95Da2237, Oct. 237, 1995; 2007Da487575, Jun. 23, 1987). Such legal principle does not constitute the market price at the time of the seller's failure to perform the obligation to transfer ownership of the subject matter of sale.

However, the court below recognized the time when the obligation to transfer ownership of this case was impossible as of March 27, 1985. However, in full view of various circumstances as stated in its reasoning, it determined that the deceased non-party 1 knew or could have known that the Defendants would purchase the subject matter of this case in order to construct a new building on the ground after the land substitution was confirmed at the time of the sale contract, and provided that the Plaintiffs are liable for all damages incurred by the Defendants by acquiring the subject matter of this case and constructing a new building on the ground, and that the Plaintiffs were liable for all damages arising from the Defendants’ loss of profits that could have accrued from the construction of the subject matter of this case on the ground. While the circumstances cited by the court below were calculated based on the market price as of May 3, 1993 near the date of the closing of argument in the court below, the court below did not err by misapprehending the legal principles as to the sale price and purchase price as of the subject matter of this case, or by failing to know or order the fact that the Plaintiff knew or could have known the subject matter of this case.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Park Jong-chul (Presiding Justice)