[1] The case holding that the right to claim the transfer registration of ownership against the reorganization company of multiple apartment buyers constitutes a priority claim under Article 208 subparagraph 7 of the Company Reorganization Act, and the right to claim damages arising from the delay of the performance constitutes a priority claim

[2] The meaning of "damage compensation and penalty resulting from nonperformance after the commencement of reorganization proceedings" under Article 121 (1) 2 of the Company Reorganization Act

[3] Requirements to recognize consolation money in a case where property damage occurs due to a contractual default

[4] Whether it is permitted to seek the compensation of property damage under the pretext of consolation money even though it is possible to deliberate and determine the amount of property damage (negative)

[1] The case holding that in case where the administrator of the reorganization company received the remaining purchase price from the buyers who concluded the apartment sale contract before the commencement of company reorganization procedure and moved in it, the right to claim for transfer registration of ownership of the liquidation company of the apartment buyers constitutes a priority claim under Article 208 subparagraph 7 of the Company Reorganization Act, and the right to claim damages due to delay of the payment also constitutes a priority claim

[2] Article 121 (1) 2 of the Company Reorganization Act provides "compensation and penalty due to non-performance after the commencement of reorganization proceedings" as subordinate reorganization claims. However, since the company has failed to perform its property rights prior to the commencement of reorganization proceedings, it refers to a claim for damages and penalty arising after the commencement of reorganization proceedings in relation to payment of damages to the other party or payment of penalty on a regular basis due to the failure to perform its property rights to the company.

[3] In general, in a case where property damage occurs due to the nonperformance of a contract, the mental suffering which the contracting party received shall be deemed to have been recovered by compensating for property damage. Thus, there are special circumstances that the compensation for property damage alone sustained irrecoverable mental suffering, and only where the other party knew or could have known such circumstance, consolation money for mental suffering may be recognized.

[4] Where it is impossible to determine the amount of damages due to the difficulty in proving that the occurrence of property damage is recognized, and it is impossible to receive compensation due to the impossibility of confirming the amount of damages, such circumstance may be considered as the ground for increase in the amount of consolation money. However, the supplementary function of consolation money is to supplement to a certain extent the imbalance in compensating for damages by increasing the amount of consolation money in cases where it is impossible to determine the amount of damages even though the occurrence of property damage is recognized, and thus it is impossible to receive compensation due to the impossibility of confirming the amount of damages. Thus, the same is not permitted in order to increase the amount of consolation money in cases where the damage is not sufficiently recovered. Therefore, in examining and determining damages due to the non-performance of contractual obligations under which the claim, admission, classification, and determination of the amount of consolation money is possible, it is difficult to allow to expand the complementary function without permission to order the payment of

[1] Articles 103(1) and 208 subparag. 7 of the Company Reorganization Act / [2] Article 121(1)2 of the Company Reorganization Act / [3] Articles 390 and 393 of the Civil Act / [4] Articles 390 and 393 of the Civil Act

[2] Supreme Court Decision 2001Da68068 delivered on May 28, 2002 (Gong2002Ha, 1511) / [3] Supreme Court Decision 93Da1915 delivered on November 9, 1993 (Gong1994Sang, 74) Supreme Court Decision 93Da5979 delivered on December 13, 1994 (Gong1995Sang, 472) Supreme Court Decision 96Da36289 Delivered on December 10, 196 (Gong197Sang, 319), Supreme Court Decision 96Da38971 delivered on July 10, 198 (Gong198Ha, 2054) / [4] Supreme Court Decision 93Da198378 delivered on April 28, 198 (Gong2054)

Plaintiff 1 and 430 others (Law Firm Dasan General Law Office, Attorneys Kim Li-lin et al., Counsel for the plaintiff-appellant)

Manager of Sam-Hy Co., Ltd. (Law Firm continental, Attorneys Noh Sang-jo et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2001Na55071 delivered on September 3, 2002

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

1. The judgment of the court below

The court below accepted the judgment of the court of first instance, and rejected the plaintiffs' claim for consolation money from 00 days to 10 days from 1996 to 10 days from 198, for the following reasons: the non-party corporation was either sold in lots or transferred the status of the sales contract from the person who purchased in lots at the time the non-party corporation was newly constructed on the non-party corporation's ○○ apartment on 2 lots of land, the non-party corporation was a reorganization company which was ordered to commence corporate reorganization procedure on February 6, 1996 and approved the approval of reorganization plan on December 23, 1997; the plaintiffs paid the remaining price according to the notification of the occupancy of the manager of the above three-party corporation (hereinafter referred to as the "division company"), but the liquidation company did not obtain approval for the use of the non-party corporation's claim for consolation money from 10 days from 190 days to June 23, 198, and it did not sufficiently recognize that the plaintiffs' property rights were not transferred due to the plaintiffs' mental uncertainty claim.

2. As to the assertion of misapprehension of the legal principle and omission of judgment as to reorganization claim

A. Article 103(1) of the Company Reorganization Act (hereinafter referred to as the "Act") provides that "Where reorganization proceedings have been commenced against one of the parties to an bilateral contract for non-performance of both parties, the receiver may cancel or terminate the contract, or claim for the other party's performance of obligations if the receiver selects the other party's performance of obligations, thereby ensuring equity between the parties by granting an option to cancel the contract or claim the other party's performance of obligations." Meanwhile, Article 208 subparagraph 7 of the Act provides that "if both the company and the other party have yet to complete the performance of the bilateral contract at the time of the commencement of the reorganization proceedings, the receiver may cancel or terminate the contract, or if both parties have not completed the performance of the obligations of the other party, the receiver may claim for the other party's performance of obligations."

B. According to the facts and records duly admitted by the court below, each sales contract concluded between the plaintiffs and the reorganization company prior to the commencement of company reorganization procedure (hereinafter referred to as "each sales contract in this case") is divided into down payment, intermediate payment, and remainder, and the plaintiffs' obligation to pay the purchase price, and the liquidation company's obligation to transfer ownership is equal to each other. Each sales contract in this case constitutes bilateral contract, and each of the sales contract in this case constitutes bilateral contract, and around February 6, 1996, the decision date for commencement of company reorganization procedure, the plaintiffs' obligation to pay the remainder and the delivery and transfer of ownership of the reorganization company, all of which were fulfilled. The liquidation company's administrator selected the execution of the sales contract by receiving the balance in full from the plaintiffs and moving into the plaintiffs on September 10, 196.

C. Thus, the plaintiffs' right to claim the transfer of ownership in a quid pro quo relationship with the right to claim the sale price of the reorganization company is not a reorganization claim, but a public-interest claim as stipulated in Article 208 subparagraph 7 of the Act. Since the plaintiffs' right to claim the transfer of ownership corresponds to a public-interest claim, it is reasonable to view

D. In addition, Article 121(1)2 of the Act provides that "compensation and penalty due to non-performance after the commencement of reorganization proceedings" as subordinate reorganization claims. However, the damages and penalty stipulated in this context mean the damages and penalty arising after the commencement of reorganization proceedings, in a relationship between the other party and the other party to pay damages or a penalty on a regular basis, because there is a failure to pay damages to the company prior to the commencement of reorganization proceedings, and thus, it refers to the claims for damages and penalty arising after the commencement of reorganization proceedings (see Supreme Court Decision 2001Da68068, May 28, 2002, etc.).

E. The court below is justified in rejecting the defendant's argument that the plaintiffs' claim for consolation money in this case does not constitute a reorganization claim although the expression is inadequate, and therefore, it does not accept the allegation in the grounds of appeal on this part.

3. As to the assertion of mistake of facts and misapprehension of legal principles on causes attributable to

As seen earlier, as long as the plaintiffs' right to claim for transfer of ownership does not constitute a reorganization claim, and constitutes a public-interest claim, the rights pursuant to the reorganization plan shall not be modified, and regardless of whether the reorganization plan becomes final and conclusive, the administrator shall perform from time to time with the original due date for repayment (see Article 210 of the Act). Thus, it is difficult to view that the reason, such as the delay in the confirmation of the reorganization plan due to an appeal or reappeal by some reorganization creditors, or the delay in the takeover of a third party, which was promoted on the premise that the reorganization plan becomes final and conclusive, and the reason why the reorganization security in the apartment site of this case was

Although the court below's reasoning on this point is somewhat insufficient, it is justified in its conclusion that rejected the defendant's assertion of exemption from liability. Therefore, the ground of appeal on this point cannot be accepted.

4. As to the assertion of misapprehension of legal principles as to consolation money

A. The plaintiffs asserted as the cause of the claim that they did not exercise their property rights due to the delay in the transfer registration of ownership for a period of two years, and thus they failed to receive a high-rate interest rate due to the failure to receive a housing mortgage loan. Some plaintiffs suffered losses due to the decline in sales in the process of immediately selling at the time when the time of sale was set and the time was not registered. Some plaintiffs did not receive tax benefits, and some plaintiffs suffered difficulties in withdrawal and withdrawal due to their failure to move to another place, and they suffered property and mental damage, such as expenditure of expenses for prompt transfer registration, etc. by the representatives of occupants due to the above damages, and thus, they sought compensation for consolation money of KRW 2 million per each plaintiff as consolation money. Accordingly, the court below accepted consolation money of KRW 1 million from the plaintiffs in lump sum on the grounds as seen in the above paragraph (1).

B. However, it is difficult to accept the above recognition and judgment of the court below easily.

In general, in case where property damage occurs due to non-performance of contractual obligation, the mental suffering which the contracting party received shall be deemed to have been recovered by compensating for property damage. Thus, there are special circumstances that the compensation for property damage has inflicted irrecoverable mental suffering, and only where the other party knew or could have known such circumstance, the consolation money for mental suffering may be recognized (see, e.g., Supreme Court Decisions 93Da59779, Dec. 13, 1994; 96Da38971, Jul. 10, 198).

In addition, if it is impossible to receive compensation due to the difficulty in proving that the amount of damage is recognized even if it is difficult to determine the amount of property damage, such circumstance can be considered as the ground for increase in the amount of consolation money. However, the complementary function of consolation money is to supplement the imbalance of compensation by increasing the amount of consolation money in cases where it is impossible to determine the amount of damage even though the occurrence of property damage is recognized, and it is impossible to recover the damage due to the impossibility to recover the damage. Thus, as in this case, it is intended to supplement to a certain extent to the extent of the imbalance of compensation by taking into account the case where the amount of consolation money is not sufficiently recovered. Thus, the same is not permitted by expanding the complementary function of consolation money and ordering the payment of a certain amount uniformly to multiple contracting parties under the name of consolation money in order to compensate for the actual loss (see Supreme Court Decision 84Meu722, Nov. 13, 1984, etc.).

C. Examining each disadvantage claimed by the plaintiffs in the above paragraph (a) above, it can be known that all of them constitute property damage due to nonperformance of contract. The plaintiffs can seek compensation for property damage by asserting and proving that the reorganization company knew or could have known in the case of damage due to ordinary damages or special circumstances. The court below should have deliberated and judged the existence of such special circumstances and that the other party knew or could have known of such circumstances.

D. Nevertheless, the court below did not decide on each of the above points and held that the court below held that the defendant is liable to compensate for the plaintiffs' mental suffering on the ground that the plaintiffs suffered considerable mental suffering due to the delayed performance of the obligation to register ownership transfer is obvious in light of the empirical rule, and that the court below committed an unlawful act such as misunderstanding of the legal principles as to consolation money for mental suffering,

E. Therefore, the ground of appeal assigning this error is with merit.

5. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, and the case is remanded to the court below 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 Zwon-won (Presiding Justice)