The standards for calculating the amount of damages that lost ownership due to exercise of security right

In the event that the plaintiff offered a loan as a collateral and lost ownership by exercising the security right as a part of the defendant's agreement, the amount of damages shall be recognized as the amount initially assessed at the above auction procedure (it cannot be said that there was no bidder at the above auction procedure, even if the price has been reduced several times without the bidder).

Articles 750 and 763 of the Civil Act

Plaintiff

Defendant Kim Yong-sik, Counsel for the defendant-appellant

Gwangju High Court Decision 78Na371 delivered on December 20, 1979

The appeal is dismissed.

The costs of appeal shall be borne by the defendant.

The grounds of appeal by the defendant's attorney are examined.

The court below explained in the judgment of the court below that when the plaintiff and the defendant jointly borrowed 700,000 won from the non-party on April 27, 1976 to the non-party as joint collateral, the plaintiff and the defendant agreed to jointly return the above loan amount to the non-party. However, in the internal relation of the plaintiff and the defendant, 50,000 won of the above loan amount, and the defendant used 200,000 won of the above loan amount and the above loan amount equivalent to 200,000 won of the above loan amount to the non-party as full payment until the due date of the loan, the plaintiff agreed to prevent damages arising from the auction of the security and the above loan amount equivalent to 200,000 won of the above loan amount, and the above loan amount corresponding to 200,000 won of the above loan amount was paid to the non-party on the due date of the repayment, but the plaintiff did not pay the above loan amount to the non-party on his own account of the mortgage of the non-party.

On the other hand, the court below held that the plaintiff offered the loan of this case as a collateral, but lost its ownership due to the defendant's violation of the contract, and calculated the plaintiff's loss amount as 3,861,00 won at the market price at the time of November 11, 1977, and calculated the plaintiff's loss amount. In light of the evidence at the time of the court below, the above fact-finding by the court below is legitimate, and even if the price was calculated at the auction procedure for the execution of this case, it cannot be said that the court below recognized the market price at the above case as 3,861,00 won at the market price at the above time, even if the price was calculated at the time of the auction procedure for the execution of this case, and there is no person who reported the auction, and it cannot be said that the court below did not err in the misapprehension of legal principles

As such, the third point of the appeal is without merit, and if the evidence is examined at the time of the original trial, all other facts-finding of the original court are acceptable, and the first point of the appeal is without merit as to whether there is illegality in violation of the rules of evidence in the process of fact-finding of the original court. There is no error in the misapprehension of legal principles as to joint and several liability or the exercise of right to indemnity, as in the judgment of the court below, since the original and the defendant agreed to the amount to be used by the original and the defendant, and the above loan principal and interest corresponding to the amount used by the plaintiff are paid by the plaintiff by the original and the defendant until the due date of the loan, and the above loan principal and interest corresponding to the amount used by the plaintiff are repaid by the original and the defendant by the principal and the defendant until the due date of the loan, and therefore, the above loan principal and interest corresponding to the amount used by the plaintiff are in violation

Therefore, the appeal is dismissed, and the costs of the appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yu Tae-hee (Presiding Justice)