Scope of compensation for bad faith beneficiaries

It is reasonable to view that the nature of damages under Article 748(2) of the Civil Act is the special damages liability incidental to unjust enrichment. Therefore, in calculating the damages, it is the same as the calculation scope of damages arising from tort or non-performance of obligation.

Articles 748, 393, and 763 of the Civil Act

Countries

Defendant

Daejeon District Court (63Ga298) in the first instance

1. Revocation of the original judgment;

2. The defendant shall pay to the plaintiff an amount of KRW 661,652 and an amount equivalent to five percent per annum from March 17, 1963 to the date of full payment.

3. The plaintiff's remaining claims are dismissed.

4. The costs of lawsuit shall be calculated by adding up two parts of both the first and second instances, and one of the remainder of the costs of lawsuit shall be borne by the defendant.

5. Provisional execution may be effected only under the above paragraph (2).

The defendant's attorney shall pay to the plaintiff an amount of 2,569,152 won per annum and 5 percent per annum from the following day from the day of service to the day of full payment.

The judgment that the lawsuit costs should be borne by the defendant and the declaration of provisional execution were sought.

The Plaintiff’s legal representative revoked the original judgment and sought a judgment with the same content as the purport of the claim.

First, we examine ex officio.

According to the records, Nonparty 1, the attorney of the plaintiff, received the number of cases from the plaintiff and filed a lawsuit at the Daejeon District Court, the court below. On July 23, 1965, after obtaining the consent of the defendant, it can look at the fact that the withdrawal of the lawsuit (record 58) was submitted to the above court below. However, in order for the above attorney to perform the act of withdrawal of the lawsuit, he/she must obtain special authorization from the delegating plaintiff. In addition, in the power of attorney (record 7), there is no proof that the above attorney was authorized to do so, and there is no other proof that the above attorney was authorized to do so, even if the defendant consented, the act of withdrawal of the lawsuit by the attorney was not effective, and therefore, this case is still pending in the court below.

For the following merits:

On February 15, 1960, the registration of ownership transfer was made under the name of the defendant with respect to the above 167 square meters (hereinafter referred to as "the above site") 167 square meters, and the non-party 2 had no dispute between the parties as to the facts that the building was constructed on the building site, which is the plaintiff's agency, 1,2-1, 2-1, 3-1, 4-1, 5 (Judgment), and 9-1 through 5 (Judgment), and the non-party 2 had no obligation to purchase the above real estate under the name of the non-party 5-1, the non-party 6-1, and the non-party 5-1, the non-party 6-1, the non-party 5-1, and the non-party 3's testimony and arguments that the non-party 5-1, who had acquired the above real estate under the name of the court below's 1937-2, the non-party 5-2, which had no dispute over this fact.

In addition, it is necessary to find out the damage suffered by the plaintiff due to the defendant's above illegal act.

In a case where the defendant sold the building site to the above non-party on January 18, 1960, and there is no proof as to the circumstances of the special group, such as that the price sold to the above non-party was the intermittent value, etc., as seen earlier, the market price of the building site at the time of the above sale on January 18, 1960 is presumed to be equivalent to the above 95,000 won (as a result of the appraiser non-party 5's appraisal at the original court, the market price of the building site at the present time at the time of the above sale on July 14, 1966 is presumed to be equivalent to the above 95,000 won (it cannot be the evidence as to the current market price as of January 18, 1960 at the time of the tort).

The defendant is liable for damages related to the loss of ownership of the building site, which is 95,00 won equivalent to the above market price, and as seen earlier, the plaintiff is liable for the illegal occupation of the building site. The plaintiff suffered damages equivalent to the above amount by paying 566,652 won to the above non-party, which is due to the above illegal occupation of the building site, and it cannot be viewed as damages equivalent to the above act, and therefore the defendant has a duty to compensate for damages related to the above act. Thus, the defendant is liable for payment of 661,652 won including the above amount of 95,00 won and 56,652 won to the plaintiff.

However, the plaintiff's attorney at the market price at the present market price in the above facts of recognition as to the amount of damages caused by the loss of ownership is equivalent to 2,002,50 won, more than the time of the above tort, and since the defendant who sold the present site bears responsibility for the non-performance of obligation in addition to the liability for the above tort, the defendant is held liable for the non-performance of obligation. Thus, the defendant is held liable for the equivalent amount of damages caused by the above liability. Thus, according to the above facts of recognition, since the defendant did not perform his obligation for the transfer of registration and sold it without performing its obligation, it can be seen that the defendant is liable for the non-performance of obligation. However, according to the above facts of recognition, in calculating the land of this case, it is identical to the scope of calculating damages caused by the above tort or non-performance of obligation. Accordingly, the above damages are identical to the damages caused by the above special circumstances, so the above claim as to the damages is therefore groundless.

In addition, even if the defendant had the above liability to compensate the defendant as above, if he sold the above non-party's building site to the above non-party, he was aware of the non-party 1's tort, and the plaintiff's lawsuit was filed on March 7, 1963 after three years have passed since the plaintiff's lawsuit was filed. Thus, the plaintiff's claim on the above tort can be acknowledged as being part of the result of verification conducted at the court below's decision that the non-party 6 filed a complaint with the Daejeon District Public Prosecutor's Office on February 16, 1960 on the ground that the non-party 6's non-party 3's non-party 6's non-party 4's non-party 6's non-party 6's non-party 3's non-party 6's non-party 3's non-party 6's non-party 6's non-party 6's non-party 1's non-party 6's non-party 3's non-party 3's non-party 6's non-party 3's non-party 3's non-party.

Therefore, the defendant is obligated to pay to the plaintiff damages for delay at the rate of 5% per annum from March 17, 1963, the day following the above 661,652 won and the above gushesing of the main sentence. Thus, the plaintiff's claim for this case shall be accepted within the scope of the above recognition, and the remainder of the claim shall be dismissed as it is without merit. Since the original judgment differs from this purport, the plaintiff's appeal shall be accepted and the original judgment shall be revoked, and with respect to the declaration of provisional execution, Article 19 of the Civil Procedure Act shall be applied to the bearing of litigation costs, and it is so decided as per Disposition by the application of Articles 96, 92, and 89 of the Civil Procedure Act.

Judges Han Man-soo (Presiding Judge)