(영문) 대법원 2019.7.25.선고 2016다211750 판결

For reasons indicated in its holding, the lower court determined that the instant lawsuit cannot be deemed to be included in the scope of the non-assignment special agreement stipulated in each sales contract concluded between the Plaintiff (Appointed Party) and the remaining designated parties (hereinafter referred to as “Plaintiffs” when referring to the Plaintiff (Appointed Party) and the designated parties”) or to be in violation of the non-assignment special agreement. The lower court rejected the Defendant’s main defense against this.

Examining the reasoning of the lower judgment in light of the relevant legal doctrine, the lower court did not err by misapprehending the legal doctrine regarding the interpretation of a non-in-in-product special agreement, as otherwise alleged in the grounds of appeal

2. Regarding ground of appeal No. 2

For reasons indicated in its holding, the lower court determined that the obligation of the Plaintiffs to pay the balance of the purchase price and the obligation of the Defendant for the registration of ownership transfer to simultaneously perform the obligation, and that the Plaintiffs cannot be deemed to have concluded a special agreement to pay the balance

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court did not err by misapprehending the legal doctrine regarding the interpretation of disposal documents and simultaneous performance in determining simultaneous performance relations, as otherwise alleged in the grounds of appeal.

3. Regarding ground of appeal No. 3

For the reasons indicated in its reasoning, the lower court determined that there was no delay liability for the portion equivalent to the construction cost out of the remainder of the sales price until the preparatory brief dated October 13, 2015 of the instant case was served on the Plaintiffs.

Examining the reasoning of the lower judgment in light of the relevant legal principles, the lower court did not err by misapprehending the legal doctrine on delay and excessive peremptory notice in determining the point at which the obligation to pay the remainder of the construction cost was established, contrary to what is alleged in the grounds of appeal.

4. Regarding ground of appeal No. 4

A. As of the date of the closing of argument, the lower court dismissed the Defendant’s appeal on the ground that the remaining amount of the Defendant’s debt is less than the amount of the Plaintiffs’ respective claims, on the following grounds: (a) the total of KRW 63,417,320 of the remainder of the purchase price and the total of KRW 71,930,878 of the construction cost; and (b) the representative D’s total of KRW 144,232,188 of the remainder of the purchase price and the total of KRW 163,594,865 of the construction cost; and (c) the amount of the remainder is less than the amount of the Plaintiffs’ respective claims.

B. However, the above judgment below is hard to accept for the following reasons.

1) Where a mortgagee of a right to collateral security voluntarily files an application for an auction to exercise the right to collateral on the ground of his/her non-performance of the secured obligation, the secured debt (mortgage) shall be established with the claim arising from the basic contract until the time of application for auction (see Supreme Court Decisions 87Da545, Oct. 11, 198; 2005Da6235, Jul. 8, 2005). Where the existence of an obligation exceeding a specified amount is acknowledged in a case where the Plaintiff claims confirmation of non-existence of an obligation exceeding the specified amount without specifying the maximum amount, barring special circumstances, the court shall not dismiss the entire claim, but shall also render a judgment of partial failure as to the remaining portion of the claim (see, e.g., Supreme Court Decisions 81Da393, Nov. 23, 1982; 93Da9422, Jan. 25, 1994).

C. Nevertheless, the lower court dismissed the Defendant’s appeal solely on the grounds as seen earlier. In so determining, the lower court erred by misapprehending the legal doctrine on the disposition right principle in a passive lawsuit seeking confirmation, thereby adversely affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

5. 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.