[1] In a case where the original owner of another person's right in a lawsuit claiming a cancellation of ownership transfer registration filed against the seller, the time when calculating the seller's amount of damages against the bona fide buyer has become final and conclusive

[2] In revocation of a contract by duress, whether a bona fide third party purchaser can be held liable for warranty against the seller after the cancellation of ownership transfer registration without claiming the third party acting in good faith (affirmative)

[1] In general, in a lawsuit claiming a cancellation of the ownership transfer registration against a seller in the transaction of another person's right, if the original owner's loss is confirmed in the lawsuit against the seller, it shall be deemed that the seller's performance of the ownership transfer registration against the buyer's objective real estate in light of the social transaction concept has reached an impossible condition. In this case, in principle, the seller's compensation for damages against the bona fide buyer shall be determined on the basis of the market price at the time when it becomes impossible to acquire and transfer

[2] In a real estate sales contract, the seller bears the duty of ownership transfer registration to the buyer, and if the seller has already transferred the ownership transfer registration to the buyer in the future, the seller is obligated to continue the registration without cancelling the registration. The purport of protecting the third party or transaction safety in good faith even if the contract is canceled by duress under Article 110(3) of the Civil Act is to protect the third party or the third party in good faith. Thus, when the contract is canceled by duress, the buyer who is a bona fide third party claims the third party in good faith to compensate for the registration of ownership transfer or cancel the registration, and whether the seller is liable to compensate for the seller

[1] Articles 569 and 570 of the Civil Act / [2] Articles 110(3), 569, and 570 of the Civil Act

[1] Supreme Court Decision 80Da117 decided Mar. 11, 1980 (Gong1980, 12712), Supreme Court Decision 80Da417 decided Jun. 9, 1981 (Gong1981, 14051), Supreme Court Decision 80Da3122 decided Jul. 7, 1981 (Gong1981, 1465) (Gong1993, 1358) decided Apr. 9, 1993

Plaintiff (Attorney Ansan-ho, Counsel for the plaintiff-appellant)

Korea

August 26, 2005

1. The defendant shall pay to the plaintiff 109,060,000 won with 5% interest per annum from March 8, 2005 to May 9, 2005, and 20% interest per annum from the next day to the day of full payment.

2. The costs of lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The following facts may be acknowledged as either in dispute between the parties or in each entry in Gap evidence 1 through 5, by integrating the whole purport of the pleadings:

A. As to the real estate of 1,435 square meters (hereinafter “instant real estate”), Nonparty 1 completed the registration of ownership transfer with Nonparty 2 pursuant to the title trust agreement with Nonparty 2, and the Defendant completed the registration of ownership transfer with the Defendant on August 18, 1980 under the Defendant’s name on June 17, 1980.

After that, on January 26, 1981, the deceased non-party 3 purchased the instant real estate from the defendant, and completed the registration of transfer of ownership in the name of the plaintiff under the name of 10787 of May 28, 1987 as the Chuncheon District Court No. 4699, which received on March 30, 1981, and the plaintiff purchased the instant real estate from the above non-party 3 on May 23, 1987, and completed the registration of transfer of ownership in the name of the plaintiff.

B. After that, the above non-party 2, non-party 1 filed a lawsuit against the defendant, the above non-party 3, and the plaintiff for cancellation of each ownership transfer registration of the above real estate (Seoul District Court 90Gahap32303). On January 30, 2004, the Seoul High Court, which was the appellate court of the above case, declared that the above non-party 2 and the defendant's donation contract concerning the real estate of this case were lawfully cancelled by the defendant's declaration of cancellation, and thus, the registration of transfer in the name of the defendant was null and void. The above non-party 3 and the plaintiff were invalid registration without any ground for cancellation of each ownership transfer registration of the above non-party 3 and the plaintiff's name. Thus, the defendant 3 and the plaintiff were declared to perform the procedure for cancellation of each ownership transfer registration of this case (hereinafter referred to as "the judgment of this case").

On March 19, 2004, the judgment of this case was finalized against the above non-party 3 and the plaintiff, and the defendant appealed against the above judgment and appealed by Supreme Court Decision 2004Da17917, but the dismissal of appeal was declared on August 16, 2004, and became final and conclusive against the defendant on the same day.

C. Meanwhile, the instant real estate was expropriated in Chuncheon before the instant judgment became final and conclusive. On September 23, 2003, the Chuncheon City deposited KRW 109,060,000 for the land expropriation compensation confirmed as a result of market price assessment at the time on the grounds that the genuine owner cannot be known, and completed the registration of ownership transfer in the name of Chuncheon City on September 25, 2003. The said non-party 1 filed a lawsuit against the Plaintiff against the Plaintiff to request confirmation of the right holder of the deposit money (Scheon District Court 2004Ga568), and the said judgment became final and conclusive on March 8, 2005.

D. On July 24, 1993, the deceased non-party 3 died and succeeded to the property according to his legal share of inheritance by Non-party 4, non-party 5, non-party 6, non-party 7, and non-party 8, who are his children. On April 26, 2005, the deceased non-party 3 transferred the claim for damages against the defendant of the above inheritor to the plaintiff in lieu of the damages liability of the above inheritor caused by the judgment of this case against the plaintiff, and notified the defendant of the transfer of the claim on the same day.

2. Determination on the cause of the claim

According to the above facts, the real estate of this case, which is the object of the sale between the defendant, the above non-party 3, and the plaintiff, is not the ownership of the seller at the time of the above sale, and these sale is the other party's right under Article 569 of the Civil Code.

In general, as in the case of the sale of another person’s right, if the original owner’s disposal of ownership transfer registration against the seller becomes final and conclusive as a result of the seller’s loss in the lawsuit claiming the cancellation of ownership transfer registration procedure against the seller, it shall be deemed that the seller’s performance of ownership transfer registration against the buyer in light of the social transaction concept has come to an impossible condition. In this case, the seller’s compensation for damages against the bona fide buyer should, in principle, be determined on the basis of the market price at the time when it becomes impossible to acquire and transfer the right, which was the object of the sale (see Supreme Court Decisions 72Da2207, Mar. 13, 197; 92Da25946, Apr. 9, 1993)

Therefore, the defendant is liable to compensate the plaintiff for damages equivalent to the market price of the real estate of this case on August 16, 2004, which became final and conclusive by the judgment against the defendant against the plaintiff, that is, the non-party 3's heir at the time of non-party 3's non-performance. However, as seen earlier, since the above heir transferred the above claim against the defendant to the plaintiff, the defendant should pay the damages to the

[Defendant asserts to the purport that the plaintiff's assertion that the plaintiff was transferred to the defendant because he did not exercise his right to claim against the third party acting in good faith in the lawsuit claiming the cancellation of the registration of ownership transfer by the non-party 2. Thus, the deceased non-party 3's heir cannot be held liable for damages. Thus, the plaintiff's assertion that the plaintiff was transferred to the defendant is not reasonable.

However, as in this case, the seller bears the duty to transfer the ownership to the buyer, and if the seller has already transferred the registration of ownership to the buyer in the future, the seller shall continue to continue to exist without cancelling the registration. The purport of Article 110(3) of the Civil Act is to protect the third party or transaction safety in good faith even if the contract is canceled by duress is to protect the third party in good faith. Thus, the plaintiff's assertion that the third party in good faith should not preserve the registration of ownership or cancel the registration, and the seller should bear the obligation to guarantee the seller's defect liability, and therefore the defendant's argument that the plaintiff should bear damages therefrom is without merit.

Furthermore, the fact that the market price of the real estate of this case was equivalent to 109,060,000 won around September 23, 2003 (the date of deposit of land compensation in Chuncheon City) due to the settlement date of the judgment of this case between the defendant and his heir as to the amount of damages, is as seen above, and thereafter, it is ratified that the market price at the time of August 16, 2004, which is the final date of the judgment of this case, is equal or higher.

Therefore, the defendant is obligated to pay to the plaintiff the above money and damages for delay which the plaintiff is seeking.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff 109,060,000 won and damages for delay at the rate of 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment, which is the date of delivery of a copy of the complaint of this case, from March 8, 2005 (the date of the judgment of the court below 1-C) to the plaintiff from March 8, 2005 (the date of the judgment of the court below 1-C). Thus, the plaintiff's claim of this case of this case is justified and it is so decided as per Disposition.

Justices Yellow-gu (Presiding Judge)