[1] A general legal nature of the advertisement of apartment sale (i.e., inducement of subscription) and a case where there is an implied agreement between the seller and the buyer on the contents of the advertisement for sale in lots

[2] The case holding that among the contents of the apartment sale advertisement, it is equivalent to the appearance and quality of apartment and its incidental facilities, which can be performed by the seller becomes the contents of the apartment sale contract

[3] In a real estate transaction, where the other party to the transaction bears the duty of disclosure in accordance with the good faith principle, and where the other party to the transaction was unaware of the fact subject to the duty of disclosure, whether the above duty of disclosure is exempted on the ground of negligence

[4] The case holding that the seller of an apartment bears the duty under the good faith principle to notify the buyer of the fact that a common cemetery was created in the vicinity of the apartment complex

[5] The meaning of transfer of business and the standard for its determination

[6] In a case where the former trustee terminates his/her duties and is appointed by a new trustee following the determination of the act of trust, whether the new trustee comprehensively succeeds to the status of the former trustee (affirmative), and the extent to which a third party may exercise the claim already occurred prior to the replacement of the former trustee

[7] In a case where it is impossible to determine the amount of damages due to the difficulty in proving that the occurrence of property damage is recognized, and it is impossible for the court to receive compensation due to the impossibility of confirming the amount of damages, whether such circumstance can be considered as the ground for increase in consolation money

[1] The offer is a conclusive declaration of intent to establish a certain contract in combination with the consent of the other party corresponding thereto, while the invitation for subscription is not a declaration of intent that constitutes an agreement different from this, even if the induced person expresses his/her intent to respond thereto, the contract is formed by the other party without the formation of the contract and by the other party's expression of consent. The content of the advertisement on commercial buildings or apartment houses can be generally deemed as an inducement for subscription. However, in the case of the transaction of a large-scale apartment complex which is sold in a pre-sale or after-sale, it can be deemed that the sales contract has the nature as an invitation for subscription. However, in the case of a large-scale apartment complex which is sold in a pre-sale or after-sale, the sales contract contains only the title, number, deliberation, scheduled date, method and time of occupancy, and there is no specific provision as to the external, material, structure, and interior decoration of the apartment and its incidental facilities. Thus, it is difficult to view that the sales contract was concluded at the time of sale contract to be concluded by the purchaser or purchaser.

[2] The case holding that, since the sales contract without any specific contents on the external form and material of apartment units subject to the sales contract itself is difficult to be seen as having been completed, the sales contract of apartment units is based on the premise that external form and material of the object will be embodied by model houses and various printed materials, such as road expansion among the contents of the advertisement, and that it is not related to the external form and material of apartment units such as road expansion, and that it cannot be anticipated that the seller can not expect that the contents of the advertisement will be performed by the buyer from among the users in light of social norms cannot be seen as having dealt with the contents of the sales contract as it is, however, it is related to the external form and material of apartment units, and contrary to this, the advertisement of hot spring advertising, floor planting, advertising of oil-free means, and the advertisement of theme park is related to the external form and material of apartment units, it is not related to apartment units, but corresponding to incidental facilities

[3] If it is evident in light of the empirical rule that the other party to a transaction would not have been notified of certain circumstances in real estate transaction, it is obligated to notify such circumstances to the other party in advance in accordance with the principle of good faith. The subject of such duty of disclosure can be acknowledged not only by the direct law but also by the contract, customs, or general principles in cooking. In the case where it is judged that the subject of the duty of disclosure is the subject of the duty of disclosure, there is no possibility that the other party may be separately informed of the subject of the obligation of disclosure. However, unless there is an exceptional case where the other party's obligation of self-verification is recognized or the other party is expected to know of the subject of the transaction practice, the other party who was unaware of the subject of the fact is not aware of the fact, even if he was negligent, it cannot be said that the obligation of notification itself is exempted.

[4] The case holding that the seller of an apartment complex bears the duty of good faith to inform the buyer of the fact that the common cemetery was created in the vicinity of the apartment complex, considering the fact that the common cemetery is not a facility close to the residential environment and its price has a significant impact on the conclusion of the sales contract, as well as that it is normally difficult to expect that the apartment complex is established in a place near the large-scale common cemetery.

[5] The transfer of business under the Commercial Act refers to the transfer of human and material organizations, i.e., an enterprise organized for a certain business purpose, to a whole, while maintaining its identity, and whether the transfer of business has been made is not determined by what kind of business property is transferred, but by which the organization can function as a whole or an important part of its business organization. Thus, even if the business facility has been transferred with the reservation of the part of its business property, if it is acknowledged that the previous organization is maintained even if it was transferred with the reservation of the part of its business property, it shall be deemed as the transfer of business. However, even if it was transferred with the entire business property, it shall not be deemed that the transfer of business has been made if it was dissolved and transferred with the dissolution of the organization.

[6] In cases where the former trustee is replaced by termination of his/her duties and appointment of a new trustee according to the determination of the act of trust, the new trustee shall comprehensively succeed to the status of the trustee in accordance with the legal principles replaced by the replacement of the trustee under Articles 26 and 48 of the Trust Act. In this case, the third person may exercise the status of the former trustee as a party to the contract regarding the claim already incurred prior to the replacement of the trustee, and may exercise the right against the new trustee within the scope of trust property under Article 48(3) of the Trust Act

[7] In calculating consolation money, the court shall determine the amount by taking into account all the circumstances of the injured party and the perpetrator. Thus, whether the injured party is entitled to compensation for damages caused by the pertinent accident, and the compensation amount, etc. are also considered as factors for calculating consolation money. In particular, if it is impossible to determine the amount of consolation money due to the impossibility of proving the occurrence of property damages even though it is difficult to prove the occurrence of such damages, such circumstance may be considered as reasons for increasing consolation money.

[1] Articles 105 and 527 of the Civil Act / [2] Articles 105 and 527 of the Civil Act / [3] Articles 2 and 110 of the Civil Act / [4] Articles 2 and 110 of the Civil Act / [5] Articles 41 of the Commercial Act / [6] Articles 26 and 48 of the Trust Act / [7] Article 751 of the Civil Act

[3] [4] Supreme Court Decision 2004Da48515 Decided October 12, 2006 / [5] Supreme Court Decision 99Du2680 Decided July 27, 2001 (Gong2001Ha, 1958) Supreme Court Decision 2000Du845 Decided March 29, 2002 (Gong2002Sang, 1019), Supreme Court Decision 2002Da23826 Decided May 30, 203 (Gong203Ha, 1429) / [6] Supreme Court Decision 2004Da57694 Decided March 9, 2006 / [7] Supreme Court Decision 84Da278425 Decided 135, 2004; Supreme Court Decision 2005Da142845 Decided March 25, 2012

Plaintiff 1 and 648 (Law Firm Pacific, Attorneys Song Jin-hun et al., Counsel for the plaintiff-appellant)

Korean Asset Trust Co., Ltd. (Attorney Choi Fixed-soo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2004Na22577, 22584, 22591 Decided December 7, 2004

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. As to the misapprehension of legal principle as to the contents of sales contract

An offer is a conclusive declaration of intent to establish a certain contract in combination with the consent of the other party corresponding thereto. On the other hand, the invitation for subscription is not an expression of intent that constitutes an agreement different from the above, even if the induced person again expresses his/her intent without establishing a contract, and thus, the contract is formed only by again inducing the purchaser to express his/her consent. In addition, if the above classification criteria are followed, it can be generally deemed that the content of the advertisement for the sale of commercial buildings or apartment houses has the nature of inducing the sale as an inducement. However, in the case of the sale of a large-scale apartment complex which is sold by the pre-sale and after-sale, the sales contract contains only Dong, lake, horizontal, and payment method and its incidental facilities (hereinafter referred to as an " apartment" and its incidental facilities, and it can only be deemed that there is no specific content or content of the sales contract, such as the terms and conditions of the sales contract, even though it can be seen as having been concluded with the purchaser of the apartment, it can not be seen that there was no specific content or content of the sales contract.

In light of the above legal principles and records, the sales contract of this case entered into between the plaintiffs and the non-party company (hereinafter "non-party company") as pointed out by the court below (No. 2-1-622) is composed of one apartment with the size of the building and site, and electricity, roads, water supply facilities, and other auxiliary facilities (Article 17). The products constructed within a model house can not be changed into other products without special circumstances, and if the contents of the sales contract of this case such as the location of the model house and various printed materials, design drawings, etc. are partially changed to other products after the execution date of the contract, it can not be seen that the non-party company's notification should be made to the purchaser of this case, and it is difficult to see the contents of the sales contract of this case's advertising building and site, the removal of the apartment complex, the passage of the Seoul National University, the extension of the right to use the apartment complex, the right to use the apartment complex, and the contents of the sales contract of this case's non-party company's apartment as advertising model and model.

Nevertheless, the judgment of the court below that there was no agreement to supply only an apartment as to the whole without examining the content of the advertisement of this case separately, is erroneous in the misapprehension of legal principles as to the interpretation of the intention of the parties in the contract for sale, which affected the remaining judgment. The plaintiffs' grounds of appeal pointing this out are with merit.

2. As to the existence of deception

A. As to the violation of the duty to notify the existence of a common cemetery

If it is evident in light of the empirical rule that the other party to a transaction would not have been notified of certain circumstances in real estate transaction, it is obligated to notify the other party of such circumstances in advance in accordance with the principle of good faith. The subject of such duty of disclosure can be acknowledged not only by the direct law but also by the general principles in contract, customs, or cooking (see Supreme Court Decision 2004Da48515, Oct. 12, 2006, etc.). On the other hand, unless it is acknowledged that the subject of the duty of disclosure is a fact subject to the duty of disclosure, the other party who was unaware of the fact is not aware of the fact that he/she is subject to the obligation of disclosure or is expected to know it as a matter of course to the other party, it cannot be said that the other party who was unaware of the fact that he/she was actually subject to the duty of disclosure is exempted from the duty of disclosure itself, regardless of the fact that there is any negligence that he/she was not aware of the fact that he/she was

In light of the records, in the case of the apartment complex of this case, elementary schools are located immediately adjacent to the 118-dong and 116-west northwest of the apartment complex of this case, and the number of graves managed and operated by the foundation park of this case is 4,300,00, a large-scale common cemetery is created in the middlewest of the above elementary school. In addition to the advertising leaflets for the apartment of this case produced and distributed by the non-party company of this case, the above elementary school site is indicated as well as the sales guide and the view of the above common cemetery is newly established, and the site where the above common cemetery is constructed can be identified by the fact that the above common cemetery is built is only planted, and the common cemetery is not indicated. In addition to the circumstance causing the misunderstanding of the buyers, it is difficult to know the fact that the common cemetery does not have a significant influence on the conclusion of the sale contract and the price of the sale contract, and the remaining common cemetery is not known to the non-party of this case.

Nevertheless, the court below did not distinguish the plaintiffs who knew of the existence of a common cemetery from those who knew of the existence of the common cemetery, and recognized only the facts as stated in its reasoning. According to the facts of recognition, the common cemetery of this case seems to have been easily known by visiting the site in light of the size and location of the site or searching for nearby residents, and a large number of the plaintiffs who actually visited the site would have known of the existence of the common cemetery, and the existence of the common cemetery of this case is presumed to have been presumed to have known of the existence of the common cemetery, and the existence of the common cemetery of this case does not constitute a deceitful act by omission, by denying the existence of duty of disclosure in relation to all the plaintiffs, on the ground that it does not constitute an act of deception due to the violation of the rules of evidence, incomplete deliberation, or misapprehension of legal principles as to deception caused by the violation of the duty of disclosure. The plaintiffs' grounds for appeal pointing this out are with merit.

B. As to the defendant's assertion related to flooring materials (the floor), studios, studios, 200 relocation advertisements to Seoul, and hot spring advertising

Examining the reasoning of the judgment below in light of the records, the court below is just in finding facts as stated in the judgment below based on the adopted evidence, and judged that this part of the advertisement constituted deception which is difficult to be recognized in light of the general commercial practices and the good faith principle on the ground that the Seoul National University advertised as "Seoul National University's relocation" although there is no basis for the scheduled relocation. There is no error of law such as misunderstanding of facts or misunderstanding of the legal principles

However, as seen earlier, so long as the content of the advertisement is deemed as both the content of the sale contract, so long as the content of the advertisement is deemed as having the contractual liability, tort liability due to deception cannot be recognized on the premise that the content of the advertisement does not constitute the content of the sale contract, and therefore, the defendant's ground of appeal as to the part of the judgment of the court below that tort liability is recognized in relation to the advertisement is recognized as well as in relation to the advertisement is justified.

3. As to the succession of an obligation to compensate for losses caused by a business transfer

The transfer of business under the Commercial Act refers to the transfer of human and material resources to a company organized for a certain business purpose, i.e., a whole organization while maintaining its identity. Whether the transfer of business has been made is not determined by what kind of business assets have been transferred, but by which the organization can function as a whole or an important part of its business organization. As such, even if the business facilities have been transferred without reserving a part of the business property, the transfer of the business is deemed to be a transfer of business in light of the social concept that the previous organization has been maintained even if the business facilities have been transferred without reserving the part of the business property, the transfer of the business can not be deemed to be a transfer of business (see, e.g., Supreme Court Decisions 9Du2680, Jul. 27, 2001; 2002Da23826, May 30, 2003).

In light of the above legal principles and records, the defendant was a company newly established under the corporate improvement agreement under which only 13 employees of non-party 2 were relatively superior among the 64 trust businesses and were transferred. On March 21, 2001, the non-party 2, including the defendant, the trustee, and the non-party 2, the trust company, the beneficiary of the trust (hereinafter referred to as the "non-party 1"), entered into an agreement to comprehensively succeed to the status of the non-party company under the trust agreement with the defendant as well as the defendant's employees. The non-party 2, who did not transfer the company's personal information for the purpose of acquiring the company's new business, and the non-party 1, who did not transfer the company's personal information for the purpose of acquiring the company's new business by the non-party 2, including the non-party 1, who had been employed by the non-party 2, and thus, the court below's decision that the non-party 3 company's new business was not transferred in accordance with the above legal principles.

However, the new trustee shall comprehensively succeed to the status of the trustee in accordance with the legal principles governing the replacement of the trustee prescribed in Articles 26 and 48 of the Trust Act, even in cases where the former trustee terminates his/her duties as well as where the former trustee is replaced by another trustee according to the determination of the trust act, and where the former trustee is replaced by the appointment of the new trustee, the former trustee shall comprehensively succeed to the status of the trustee. In this case, the third person shall not be able to exercise the rights of the claims already incurred prior to the replacement of the trustee against the contracting party, and the new trustee shall be able to exercise the rights of the former trustee within the scope of the trust property pursuant to Article 48(3) of the Trust Act (see Supreme Court Decision 2004Da57694, Mar. 9, 2006). In this case, there is no agreement on the change of the trust contract and the succession contract on March 21, 201 to the extent that it is the most important reason for the transfer registration of the trust property in this case.

Nevertheless, without any reservation of liability property under the Commercial Act on the premise that it constitutes a transfer of business under the Commercial Act, the court below held that the defendant is liable to perform the liability for damages arising from the tort of the non-party company, which is the former trustee, is erroneous in the misapprehension of legal principles as to the transfer of business under the Commercial Act, which affected the conclusion of the judgment. The defendant'

4. As to the calculation method of damages

In calculating consolation money, the court shall determine the amount in consideration of the overall circumstances between the injured party and the perpetrator. As such, whether the injured party can receive compensation for the property damage caused by the accident in question from the perpetrator, and the reasons such as the compensation amount, etc. are also the factors for calculating consolation money. In particular, if it is impossible to determine the amount of consolation money due to the impossibility of proof, etc. even though it is recognized that the damage was caused by property damage, such circumstance may be considered as the reasons for increasing consolation money (see Supreme Court Decision 84Meu722, Nov. 13, 1984, etc.).

In light of the above legal principles and records with respect to the portion of tort liability caused by deception among the advertisement in this case, the judgment of the court below that there is no way to objectively calculate the value of the apartment in this case, which is the item to be deducted, from the perspective of calculating the amount calculated by subtracting the market price (i.e., the price claimed by the plaintiffs) of the apartment in this case from the actual sale price paid by the plaintiffs, ② from the sale price of the apartment in this case as at the time of the conclusion of the sale contract by deception, the amount of damages incurred by the plaintiffs' illegal deception in this case shall be deducted. In addition, if it is deemed impossible to calculate the amount of property damages, the method to calculate the amount of damages to be compensated in consideration of mental damage, as decided by the court below, shall be possible. Accordingly, all of the arguments in the grounds of appeal that the court below erred by violating the rules of evidence,

On the other hand, as seen earlier, it is not necessary to examine the issue of calculating damages caused by tort with respect to the calculation of damages with respect to hot spring advertising, floor planting advertising, etc., rather than tort liability caused by deception. However, in calculating damages with contract liability, although there are already subscribed persons on or before February 15, 1998, the date of entering into the sale contract can be identified as after the date of the above hot spring advertising, the defendant's assertion that it is impossible to recognize consolation money for the plaintiffs, under the premise that they had entered into the sale contract before the date of the above hot spring advertising, cannot be accepted, and even if the number of sales contracts after the provision of benefits from the payment of the purchase price increased rapidly, it is confirmed that the hot spring advertising continued to have affected the plaintiffs' conclusion of the sale contract, and as long as it is considered as one of the important factors to determine apartment value in the market, it is difficult to determine damages with the market price at the point of time different from the market price at which the sale contract was concluded by the defendant's appraisal method and the market price at the above should be different from the market price at the point of time.

5. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)