The case where the appraisal of damages was erroneous;

7,500,000 won of the maximum debt amount against a building owned by the debtor was additionally established and secured for a claim equivalent to the same amount, and the creditor’s exercise of the right to collateral security is not erroneous in the misapprehension of law by failing to exhaust all necessary deliberations as to the amount recoverable, and deducting the full amount of KRW 7,50,000 from the total amount of damages of this case, on the ground that there is no sufficient evidence to support the creditor’s exercise of the right to collateral security.

Article 393 of the Civil Procedure Act

Attorney Choi Byung-hoon et al., Counsel for the defendant-appellant

Attorney Jeon Jong-gu, Counsel for the defendant-appellant

Seoul High Court Decision 75Na620 delivered on October 29, 1976

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

The court below acknowledged that the defendant suffered damages to the plaintiff due to defects in appraisal while entering into an appraisal business agreement with the plaintiff 40 won, and recognized that the plaintiff 2 was liable for damages due to the difference between the plaintiff 1 and the non-party 40 won and the non-party 28,000 won and the non-party 40 won as a result of the plaintiff 1's establishment of a mortgage-backed loan agreement with the non-party 40 won and the non-party 40 won as a result of the plaintiff 1's establishment of a mortgage-backed loan agreement with the non-party 40 won and the non-party 40 won as to the non-party 5 won as to the non-party 20 won as to the non-party 40 won as to the above real property at the 15,668,000 won and the non-party 40 won as to the non-party 1's loan market price at the time of the above loan.

First, the plaintiff's ground of appeal No. 2 is examined.

As seen earlier, the lower court calculated the Defendant’s amount of damages after deducting the amount from the Plaintiff’s principal claim solely on the ground that the claim for the same amount was secured by establishing a collateral security right in addition to the maximum debt amount of KRW 7,500,000 against the building owned by the obligor. However, in view of the evidence produced by the lower court, there is no evidence sufficient to recognize that the Plaintiff’s full amount of KRW 7,50,000 was recovered when the Plaintiff performed the said collateral security right. Nevertheless, the lower court did not exhaust all necessary deliberations on the recoverable amount and deducted the full amount of KRW 7,50,000 from the Plaintiff’s amount of damages. As such, it did not affect the conclusion of the judgment, the Plaintiff’s argument on this point is reasonable.

Next, the defendant's grounds of appeal Nos. 3 and 4 are examined.

The court below acknowledged that the obligor’s ability to repay was excessive to KRW 7,50,000,00, according to the reasoning of the judgment below, it can be seen that the obligor’s ability to repay was a cause for the offsetting of negligence in this case. However, since the court below’s approval on self-sufficiency was improper as stated in the former part, it may be considered disadvantageous to the Defendant, the Defendant’s ground of appeal that excessive offsetting of negligence may also be considered as unfavorable to the Defendant.

Ultimately, since both appeals by the original defendant are well-grounded, the original judgment is reversed and the judgment on each other's grounds of appeal is omitted in order to have the original judgment re-trial, and it is so decided as per Disposition by the assent of all participating judges.

Justices Ahn Byung-soo (Presiding Justice) (Presiding Justice)