2019Na53072 Compensation for damages

1. A;

2. B

3. C.

[Judgment of the court below]

1. D;

2. E:

[Defendant-Appellant] Defendant 1

[Defendant-Appellant]

Changwon District Court Decision 2018Da34946 decided February 14, 2019

September 20, 2019

January 31, 2020

1. Of the judgment of the court of first instance, the part of the judgment against the Defendants ordering payment of KRW 29,400,000 to the Plaintiffs as well as 5% per annum from July 21, 2018 to January 31, 2020, and 15% per annum from the next day to the date of full payment, shall be revoked, and all of the claims filed by the Plaintiffs corresponding to the revoked part shall be dismissed.

2. The plaintiffs' appeal and the defendants' remaining appeals are dismissed, respectively.

3. Of the total litigation costs, 2/5 shall be borne by the Plaintiffs, and the remainder by the Defendants.

1. Purport of claim

The defendants jointly and severally pay to the plaintiffs 59,00,000 won with 15% interest per annum from the day after the delivery date of the copy of the complaint of this case to the day of complete payment.

2. Purport of appeal

A. The plaintiffs shall revoke the part against the plaintiffs falling under the part of the judgment of the court of first instance which ordered payment. The defendants shall jointly and severally pay to the plaintiffs 10 million won with 5% interest per annum from the day following the day of service of a copy of the complaint of this case to the day of the judgment of the court of first instance, and 15% interest per annum from the next day to the day of full payment.

B. The Defendants: The part against the Defendants in the judgment of the first instance is revoked, and all of the plaintiffs' claims corresponding to the revocation are dismissed.

1. Quotation of the first instance judgment

The reasoning of the judgment of this court is as follows, with respect to the assertion added or emphasized by the Defendants in this court, adding "2. Additional Judgment" to "2.00", and except for the case where "(c)" and "(f) of the 13.0 to 6.0 of the judgment of the court of first instance and "(e) of the 11 to 15 of the 6.0 of the 15th judgment are "3.0's height", and therefore, it is identical to the ground of the judgment of the court of first instance.

2. Additional determination

A. Determination as to Defendant D’s non-existence of liability for damages

Defendant D asserts that there was no liability for damages due to nonperformance of each of the respective books of this case on September 20, 2017 (hereinafter referred to as “instant first letter”) and April 30, 2018 (hereinafter referred to as “second letter”). Thus, Defendant D asserts that there was no liability for damages due to nonperformance of each of the respective books of this case.

In full view of the following facts and circumstances, there is no dispute, or the evidence Nos. 2-1, 3, 3-1, 3-3, and 7-10 of the evidence Nos. 2-1, 3-2, and 10 of the evidence Nos. 2-2, which are acknowledged by adding the whole purport of the pleading to the whole purport of the pleading, Defendant E appears to be acting for and on behalf of the joint lessee, or on behalf of the plaintiffs and the joint lessee, it is reasonable to deem Defendant D as a party to the above statement.

① Defendant D, as a party to a lease agreement on each of the instant real estate, has run a used car sales business for several years by leasing the said real estate together with Defendant E, a joint lessee.

② On July 11, 2017, the lease agreement between the Plaintiffs and the Defendants indicated the monthly rent of KRW 2.5 million. The lessee’s name, resident registration number, address, telephone number, etc. is indicated in the lessee’s column.

③ Each of the instant first papers states the expiration date of the lease agreement, i.e., the period of delivery of each of the instant real estate upon the expiration of the termination due to the expiration of the lease agreement. Defendant D’s name is affixed a seal imprint on the side of Defendant D’s name, and Defendant E also states the resident registration number and address as a lessee’s agent, and each of the above papers states that the Defendants are issued each of the certificates of personal seal impression. The remarks column of Defendant D’s certificate of personal seal impression is written.

④ Defendant D does not specify in each of the instant secondary papers. However, Defendant E also prepared it as Defendant D’s agent at the same time, and Defendant E prepared the instant secondary papers in a series of process where the Defendants delayed delivery of each of the instant real estate in accordance with the instant primary papers. In preparing the instant secondary papers, it is reasonable to interpret Defendant D also as a party to the instant secondary papers, inasmuch as it is difficult for the Plaintiffs to find any special circumstances to exempt only Defendant D from the obligation to deliver, contrary to the aforementioned primary papers, inasmuch as the Defendants delayed delivery of each of the instant real estate in accordance with the instant primary papers.

Therefore, Defendant D’s above assertion is rejected.

B. Determination as to the delay of the duty of delivery on the second letter of this case and the absence of causation between the plaintiffs' damages

The Defendants asserted that the damages equivalent to KRW 49 million paid by the Plaintiffs to K (hereinafter referred to as “K”) due to the delay in the delivery of each of the instant real estate by the Plaintiffs are not reasonable causal relation with the delay in the delivery of the obligation under the second letter of this case, and therefore, they are not liable to compensate the Plaintiffs for such damages.

On the other hand, the following facts and circumstances, which can be acknowledged by adding the purport of the entire arguments as seen above, are the second letter (Evidence A7) of this case, stating that "I, on the case of failure to perform the duty of delivery to the lessor by April 30, 2018, hold a civil liability and sign and seal to compensate for damage to the lessor by not later than May 7, 2018." According to the above text, delay of delivery obligation under the second letter is merely merely a condition for the defendants' liability for damages, and it is clear that the defendants did not limit the scope of damages to be compensated only if the defendants delay of delivery obligation under the second letter of the above second letter was caused by delay of delivery obligation. Thus, it is reasonable to view that the defendants are liable to compensate for damages due to delay of delivery obligation under the second letter of this case as well as delay of delivery obligation under the second letter of this case.

Therefore, the Defendants’ above assertion cannot be accepted on a different premise.

3. Parts:

○ Parts 5, 13 to 6, 2

“C. Meanwhile, the Defendants asserted that the damages claimed by the Plaintiffs are excessive considering the following: (a) the scope of ordinary damages when they violated the duty to return the leased object; (b) the Defendants’ endeavored to comply with the duty to return the leased object; (c) the circumstances where each of the instant real estate was not delivered to the due date; and (d) the delivery of each of the instant real estate four days after the due date

However, in cases where the obligor is liable for damages due to nonperformance to the obligee, if there is any negligence on the obligee or it is necessary to ensure fairness in the burden of damages (see, e.g., Supreme Court Decision 2006Da16758, 16765, Oct. 25, 2007), the obligor’s liability may be limited (see, e.g., Supreme Court Decision 2006Da16758, Oct. 25, 2007). The following facts and circumstances revealed in addition to the overall purport of the arguments revealed in the above facts, namely, (i) the Plaintiffs’ need to sell each of the instant real estate and the consent of the Defendants to sell each of the instant real estate during the lease term; (ii) the damages amount of KRW 100 million due to delay of the above obligation to deliver each of the said real estate to K is a kind of amount of damages, and (iii) it is difficult to view that the Defendants were liable to delay all damages due to a special special agreement between the Defendants and K 130 billions.

Therefore, the above assertion by the defendants is justified within the scope of the above recognition.

○ Heading 6, 11 to 15

“D. Therefore, the Defendants jointly have a duty to resist the existence and scope of the Defendants’ performance obligation from July 21, 2018, which is the day following the last delivery date of the copy of the complaint of this case x 60%) to the Plaintiffs as damages for nonperformance of obligation (i.e., 29,400,000 won x 49,000%) and to pay damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act until January 31, 2020, which is the date of the judgment of the court of this case, and 15% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, from the next day to the day of full payment.”

4. Conclusion

Thus, the plaintiffs' claim of this case shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as without merit. Since the part against the defendants ordering payment in excess of the above recognition amount is unfair from among the judgment of the first instance court which concluded a different conclusion, it shall be revoked and all of the plaintiffs' claims corresponding to the revoked part shall be dismissed. The plaintiffs' appeal and the remaining appeals by the defendants

Judges Park Jong-dae

Judge Kang Jin-Name

Judges Gu Superintendent-mo