[1] The case where the claim infringement by a third party constitutes a tort and the standard for determining illegality

[2] In a case where Gap et al. entered into a construction contract with Eul et al. on the construction of a flower complex, Eul et al. acquired a construction contract from Eul et al., and Eul et al. purchased a vinyl house within a flower complex from Byung et al., the case holding that the court below erred by misapprehending legal principles in recognizing Gap et al.'s tort liability for damages on Gap et al., even though Gap et al. were not deemed to have been unlawful, since Gap et al. were deemed to have been aware that the ownership and the right to sell a vinyl house within a flower complex was to have been held to Gap et al., due to the delayed construction of legal disputes with Byung et al. or the exercise of some physical power, and caused damages to the

[1] Article 750 of the Civil Act / [2] Article 750 of the Civil Act

[1] Supreme Court Decision 2006Da9446 Decided September 21, 2007 (Gong2007Ha, 1649) Supreme Court Decision 2008Da82582 Decided October 29, 2009

Plaintiff 1 and six others (Plaintiff 1, 3 through 7, Law Firm Written Documents, Attorneys Yellow regulations, et al., Counsel for the plaintiff-appellant)

Defendant 1 and one other

Busan High Court Decision 2009Na16247 decided August 26, 2010

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

The grounds of appeal are examined.

1. According to the reasoning of the judgment below, the court below determined, based on the adopted evidence, that the defendants and the co-defendant 1 of the court of first instance (hereinafter referred to as the "defendant, etc.") created the "Dongbu delivery Complex" on the land outside Busan-gun and 23 lots on the land ( Address omitted) and concluded a contract for the construction of the Dongam delivery complex consulting and construction (hereinafter referred to as the "the construction contract in this case") with the Dongam Construction Co., Ltd. (hereinafter referred to as the "Dongam delivery Complex"), and that it was impossible for the plaintiffs to take over the above construction contract from the Dongam Construction Co., Ltd. to take over the above construction contract in order to take over the construction contract in this case (hereinafter referred to as the "si delivery construction"), and that the plaintiffs were unable to take over part of the construction contract in the form of the sale price in this case to the defendant's business buyer's right and interest, and that the plaintiffs received the sale price in this case from the defendant, etc., without taking over the sale price in this case.

2. However, we cannot accept the above judgment of the court below.

In order for a third party’s act to constitute a tort as it infringes on a claim, it shall be recognized that the third party violated an obligee’s interest by either violating laws or regulations or violating good morals and other social order with knowledge of the fact that it harms a creditor. In such a case, whether such an act is illegal shall be determined specifically and individually by taking into account the content of the claim infringed, the mode of the infringement, the intent of the infringer or the existence of the year when the infringer committed the act. However, the decision should be made by comprehensively taking into account the need to guarantee the freedom of trade, public interest including economic and social policy factors, and the balance of interest between the parties (see, e.g., Supreme Court Decisions 2006Da9446, Sept. 21, 2007; 208Da82582, Oct. 29, 2009).

However, according to the records, ① the construction of the instant construction contract with the Defendant, etc. appears to have been well aware of the fact that the Defendant et al. had no funds necessary for the construction of the instant construction contract. If so, the act of entering into the instant construction contract with the Defendant et al. without any funds necessary for the construction cannot be deemed as an unlawful act against the buyers, including the Plaintiffs, and even if the Defendant et al. failed to properly parcel out or transferred only part of the parcelling-out price received from the buyer, it cannot be deemed as an unlawful act against the buyers et al. of the instant construction contract. ② Even if the Defendant et al. applied for the suspension of the construction of the above construction project against the Defendant et al., for the suspension of the sale of the instant construction project, it cannot be deemed that the ownership of the instant plastic house was lost or delayed after the application for the suspension of the sale of the instant construction project was filed against the Defendant et al., to the effect that the ownership of the instant plastic house was prohibited.

Therefore, even if the defendant et al. suffered losses due to the delay in the access road to the flower complex, road and parking lot construction to be established pursuant to the sales contract concluded between the plaintiffs and the buyers including the plaintiffs, the access road to the flower complex, and the road and parking lot construction to be installed pursuant to the sales contract concluded with the buyers including the plaintiffs, and the failure of the buyers to properly sell the land, thereby resulting in a failure to activate the business as anticipated, it cannot be deemed that the above acts by the defendant et al. were illegal, so long as it is difficult to view that the defendant et al. suffered losses, it cannot be deemed that the tort liability is

Nevertheless, the court below determined that the defendants' tort liability against the plaintiffs is recognized. The judgment of the court below is erroneous in the misapprehension of legal principles as to the elements for establishing tort due to claim infringement, which affected the conclusion of the judgment, and the grounds for appeal assigning this error are

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)