The case holding that the judgment of the court below which revoked the excessive portion of the pre-sale contract's right to claim the payment of the purchase price of the pre-sale contract was unlawful as it decided that the provisional attachment order which is a preserved claim and the remaining amount based on the subsequent sales contract and the compensation for delay

Article 203 of the Civil Procedure Act

Creditor (Law Firm Sejong, Attorneys Choi Young-soo et al., Counsel for the plaintiff-appellant)

Korea Urban Development Industry Co., Ltd. (Attorney Han Jong-hoon, Counsel for the defendant-appellant)

Daegu High Court Decision 2006Na6325 Decided February 15, 2008

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

Each ground of appeal by creditors and debtors is examined together.

According to the reasoning of the judgment below, the court below acknowledged facts as stated in its reasoning based on its adopted evidence, and found that the sales contract made between the creditor and the debtor company on November 2, 2004 was made up for a comprehensive transfer by the creditor, etc. to a third party (non-party 1 or non-party 2) of all the right to share in the site and the right to sell the building on its ground, and thus, the creditor cannot claim for the payment of the purchase price based thereon. On May 2, 2005, the non-party 2 purchased the site and the building in this case from the debtor company and did not pay KRW 150 million out of the purchase price. The substance of the sales contract is that the creditor is the debtor company and the debtor company is the buyer, and the debtor company is obligated to pay KRW 150 million to the creditor of the provisional seizure decision in this case, and dismissed the creditor's application for provisional seizure within the limit of KRW 150 million,000,000.

However, the lower court’s determination is difficult to accept.

A court shall not render a judgment on the matters not requested by the parties (Article 203 of the Civil Procedure Act).

However, according to the records, the creditor asserted that on November 2, 2004, he sold the share of the site of this case to the debtor company in KRW 200 million, and did not receive the price, and asserted that the claim for payment of price was a preserved claim for the provisional seizure of this case.

Therefore, the above claim for the purchase price based on the sales contract of November 2, 2004 and the claim for the remainder of the purchase price based on the sales contract of May 2, 2005 are separate claims that differ in the subject matter of a lawsuit. As seen earlier, the judgment of the court below is erroneous and it has affected the conclusion of the judgment, and it is obvious that the decision of the court below was made with respect to the matters that the creditor did not apply. The argument in each of the grounds of appeal by the creditor and the debtor

Therefore, without examining the remaining grounds of appeal, the judgment below is reversed, and the case is 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 on the bench.

Justices Kim Young-ran (Presiding Justice)