2014Da20370 Damage, Claim

person

The lawsuit taking over of the Central Busan Savings Bank, a corporation

The Bankruptcy Trustee of the Bankrupt Central Savings Bank, Inc.;

United States Development Corporation

Seoul Central District Court Decision 2012Na54576 Decided January 8, 2014

February 12, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. On the ground of the Defendant’s ground of appeal No. 1, based on the facts acknowledged in its reasoning, the lower court determined that the Defendant is liable to compensate the Plaintiff for the damages incurred by the Plaintiff due to nonperformance from January 18, 2007 to April 1, 2013, which was sought by the Plaintiff, since the Defendant denied the Plaintiff’s membership status and did not comply with the Plaintiff’s transfer request by denying the Plaintiff’s membership status until the instant lawsuit was brought against the Plaintiff.

Examining the record in accordance with the relevant legal principles, the said determination by the lower court is justifiable. In so doing, contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the existence of liability

2. Plaintiff’s ground of appeal

(1) In light of the fact that the plaintiff filed a lawsuit against the defendant and dismissed the appeal against the plaintiff on July 9, 2007 by the Supreme Court Decision 45807 Decided July 9, 2009 that "the plaintiff is obliged to implement the transfer of membership in the membership roll" was not intentional or negligent until the judgment of the case becomes final and conclusive, the court below determined that the defendant's refusal of the plaintiff's transfer of membership to the plaintiff was not attributable to the defendant's legal interpretation of the relevant provisions of the former Installation and Utilization of Sports Facilities Act (amended by Act No. 6907 of May 29, 2003) in the lawsuit where the individual or company in the same position as the plaintiff filed a lawsuit against the defendant for confirmation of membership in the golf club of this case against the defendant, the court below rejected the plaintiff's refusal of the transfer of membership in the golf club of this case by the Supreme Court Decision 90 Decided July 9, 2009 on the ground that the plaintiff's refusal of the transfer of membership in this case was not attributable to the defendant's legal interpretation and mistake.

(2) The above determination by the court below is not correct.

In a claim for damages due to nonperformance, if the obligor did not perform the contractual obligation that became final and conclusive, it itself is deemed unlawful (see Supreme Court Decision 2000Da47361, Dec. 27, 2002). However, if the obligor did not perform his/her contractual obligation intentionally or negligently, the obligor is not liable for damages (see Article 390 of the Civil Act). Meanwhile, if the obligor believed that the obligor was not liable and there is justifiable reason to believe that the obligor was not liable for the nonperformance, it may be deemed that the obligor does not act intentionally or negligently on the part of the obligor. However, even if the obligor asserted the suit through a lawsuit with the belief that the obligor did not perform his/her contractual obligation through a legal judgment on the cause of the nonperformance or the existence of the obligation, barring any special circumstance, if such legal judgment was erroneous, it cannot be said that the obligor did not have intention or negligence with respect to the nonperformance (see Supreme Court Decision 2011Da85352, Dec. 26, 201

According to the above legal principle, even according to the reasons revealed by the court below, the defendant merely believed that he did not have a debt to himself according to a wrong legal judgment, and it cannot be deemed that there is a justifiable reason for the defendant to believe that he did not have a debt to him, on the sole basis of the fact that the lower court's conclusion in a majority lawsuit at the same issue as in this case, or that the defendant asserted it until the judgment became final and conclusive in the related lawsuit in this case, and therefore, it cannot be deemed that there was no intention

(3) On the grounds stated in its reasoning, the lower court determined that there was no intention or negligence on the part of the Defendant in default, and thus, the lower court’s judgment erred by misapprehending the legal doctrine on the intention or negligence of default, thereby affecting the conclusion

3. As to the defendant's second ground for appeal

(1) In a lawsuit seeking compensation for damages due to nonperformance of obligation, where it is deemed that the existence of property damage is recognized, but it is difficult to prove the specific amount of damage in light of the nature of the case, the court may determine the amount of damage by comprehensively taking into account all the relevant indirect facts, including the relationship between the parties, the circumstances leading up to nonperformance of obligation and its property damage, the nature of damage, and various circumstances after the occurrence of damage (see, e.g., Supreme Court Decision 2002Da6968, Jun. 24, 2004). However, even though the legal principle is proven under the principle of free evaluation of evidence, if it is difficult to prove the amount of damage due to the nature of the case, the purport thereof is to realize the same as well as the right to free discretion in calculating the amount of damage by reducing the degree of proof and the degree of depth. Therefore, in determining the specific amount of damage by the aforementioned method, the court shall search for the indirect facts that constitute the basis for calculating the amount of damage and make reasonable assessment of the amount of damage.

(2) The lower court calculated the amount of damages incurred by the Plaintiff due to the Plaintiff’s denial of membership status from the Defendant, based on the amount calculated by multiplying the membership fees by the interest rate on a fixed deposit in a commercial bank where the market price or the price thereof is unknown in the real estate assessment by applying mutatis mutandis the "Act on the Settlement of Real Estate", which is one of the methods to seek rent in the real estate assessment for reasons that the case of rent in golf membership similar to the instant membership cannot be confirmed.

(3) The lower court’s calculation of damages is difficult to accept on the following grounds. According to the instant golf club’s rules (No. 1), the status as a member based on the membership of the instant golf club is contractual rights and obligations corresponding to the membership of the golf club operated with the deposit membership system, and its content is that a member has a right to use the golf club facilities as a favorable condition pursuant to the rules of the association, a right to use the golf club facilities as a favorable condition after a certain grace period prescribed by the rules of the association, and a right to receive a refund of the membership fee deposited at the time of the withdrawal from the association after the passage of a certain grace period prescribed by the rules of the association, as well as a right to use the golf club facilities as a member. In other words, the basic content of the right held as a member before the Plaintiff’s withdrawal from the association is the right to preferentially use the golf club facilities. Accordingly, the Defendant bears the duty to allow the Plaintiff, who is a member, to use the golf club facilities in accordance with the rules of the association.

In the event that the market price of the Plaintiff’s membership right calculated as the amount of damages due to the Defendant’s nonperformance of obligation or its market price is unknown, it is difficult to view that the amount calculated by multiplying the membership fee by the interest rate on time deposits in commercial banks is reflected in the Plaintiff’s loss incurred by the Plaintiff due to the loss of the interest on the golf course facilities that constitute the basic contents of membership rights. Furthermore, even if the Plaintiff due to the Defendant’s nonperformance of obligation incurred losses from the Plaintiff’s failure to obtain expected profit equivalent to the interest on time deposits for the amount corresponding to the interests on time deposits in relation to the amount corresponding to the interests on time deposits, such losses are not the loss from the loss of the interest on use due to the failure to exercise the right to preferentially use the golf course facilities, but the loss due to the loss of the opportunity to use the golf course’s economic value and value, etc., which is the economic value and value of membership rights. Considering the legal nature of the said loss as the consumption value of membership rights, this shall not be deemed the loss due to special circumstances.

Ultimately, in the instant case, in light of the content and nature of the right interfered with the exercise of the right by the Defendant due to the Defendant’s nonperformance, and the degree and duration of the nonperformance, it seems difficult to prove the amount of specific loss due to the nature of the case, even though the Plaintiff’s nonperformance of obligation

In light of the above legal principles, the amount of damage in proximate causal relation with the Defendant’s nonperformance of obligation should be reasonably assessed and calculated based on the results of examination of evidence and the entire purport of pleadings, including the average number of golf club facilities used by the Plaintiff as a member during the period during which the Plaintiff was denied the status as a member, the difference between the annual usage fee paid by the members of the golf club as a member, the amount of the single usage fee for the golf club facilities used by the members as a member, the difference between the single usage fee paid in the status of non-member, the maximum number of times the terms and conditions at the time of recruiting members of the new leisure industry, the entire period during which the Defendant denied the status of the Plaintiff.

(4) On the grounds stated in its reasoning, the lower court calculated the amount calculated by multiplying the market price or membership fee of the instant membership by the interest rate on a fixed deposit in a commercial bank as damages to be compensated by the Defendant. In so doing, the lower court erred by misapprehending the legal doctrine on the calculation of damages, thereby affecting

4. Conclusion

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 Shin Young-young

Justices Kim Jae-tae

Chief Justice Cho Jae-hee