In a case where a claim for passive damages caused by the loss of the right to purchase an apartment, which is excluded from the selection of a person to be specially supplied, whether the court can determine the active damage that the right to purchase is lost

The reason why a person falling under the special supply object of an apartment is excluded from the selection of the subject, and the damages incurred by the loss of the right to purchase the apartment in itself at the time of the loss of the right to purchase the apartment is to assess the damages as positive damages. In the case of claiming compensation for damages for the value calculated by deducting the purchase price from the value of the apartment that could not be acquired by the right to purchase the apartment due to the loss of the right to purchase the apartment, which is the passive damages not acquired by the right to purchase the apartment due to the loss of the right to purchase the apartment,

Article 763 (Article 393) of the Civil Act, Article 188 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Lee Gyeong-soo et al., Counsel for plaintiff-appellant)

Plaintiff

[Defendant-Appellee] Defendant 1 and 3 others

Busan High Court Decision 93Na10057 delivered on February 16, 1994

The appeal is dismissed. The costs of appeal are assessed against the defendant.

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

It is reasonable to judge that a person who falls under a special purchaser of an apartment is excluded from the selection of the eligible purchaser and damages incurred by the loss of the right to purchase the apartment in itself at the time of the loss of the right to purchase the apartment, as positive damages. It cannot be determined that the plaintiff suffered positive damages such as the loss of the right to purchase the apartment in claim for compensation for the value calculated by deducting the purchase price from the value of the apartment that could not be acquired by the right to purchase the apartment due to the loss of the right to purchase the apartment as passive damages that the plaintiff could not acquire by the right to purchase the apartment due to the loss of the right to purchase the apartment. (See Supreme Court Decision 91Da43657 delivered on June 23

Examining the reasoning of the judgment below in comparison with records, the court below was just in holding that the damages suffered by the plaintiff in this case where the damages incurred by the plaintiff due to the loss of the right to purchase were claim for the above passive damages, barring any special circumstance, by the defendant's general sale to the constructor, which was equivalent to the purchase price deducted from the apartment price as of January 21, 1992, which was finally lost the right to purchase the plaintiff's apartment as of January 21, 192, and there was no error in the misapprehension

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

Justices Shin Sung-sung (Presiding Justice)