[1] The case holding that where the seller of a sale in lots advertises the possibility, etc. of the business of installing the nanotechnology without correct confirmation, it constitutes "false or exaggerated advertising" under Article 3 (1) 1 of the Act on Fair Labeling and Advertising

[2] The case holding that the seller is liable for tort under the Civil Code because it violated the duty of disclosure under the good faith principle in case where the seller provides wrong information to the person at the negotiation stage of the officetel sales contract through the advertisement

[3] The method of determining the amount of damage, where it is difficult to prove the specific amount of damage due to the nature of the case, even though the existence of property damage is recognized as having occurred due to the tort

[4] The case holding that in case where the seller of an officetel sales advertisement to the Incheon International Airport's International Airport's office without correct confirmation that the buyer would complete the officetel sales advertisement, and the buyer received it, and then the buyer thereafter claimed damages due to the decline in the market price of the officetel, the buyer should individually consider the impact on the decline in the exchange value of the officetel and calculate the reasonable and objective amount of damages

[1] The case holding that where the seller of a sale in lots advertises the possibility, etc. of the business of installing the nanotechnology without correct confirmation, it constitutes "false or exaggerated advertising" under Article 3 (1) 1 of the Act on Fair Labeling and Advertising

[2] The case holding that the seller is liable for tort under the Civil Code because it violated the duty of disclosure under the good faith principle in case where the seller provides wrong information to the person at the negotiation stage of the officetel sales contract through the advertisement

[3] In a claim for damages arising from a tort, where the existence of property damage is recognized as having occurred, 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 in proximate causal relation by taking into account all the relevant indirect facts, including the relationship between the parties revealed by the result of examination of evidence and the purport of all pleadings, the background leading up to the occurrence of property damage, the nature of the damage, and the overall situation

[4] The case holding that in case where the seller of an officetel sales advertisement to the Incheon International Airport International Airport's effect that the Manole Day is scheduled to be completed without correct confirmation, and the buyer received it and then the buyer thereafter claimed damages due to the decline in the market price of the officetel, the buyer should individually consider the influence of the decline in the exchange value of the officetel and calculate the reasonable and objective amount of damages

[1] Article 3 (1) 1 of the Act on Fair Labeling and Advertising / [2] Articles 2 and 750 of the Civil Act / [3] Articles 393 and 750 of the Civil Act, Article 202 of the Civil Procedure Act / [4] Articles 393 and 750 of the Civil Act, Article 202 of the Civil Procedure Act

[3] Supreme Court Decision 2002Da6951, 6968 decided Jun. 24, 2004 (Gong2004Ha, 1201)

Plaintiff 1 and 25 others (Law Firm KEL, Attorneys Lee Hon-soo et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Im-soo et al., Counsel for the defendant-appellant)

The Incheon Metropolitan City Federation

Seoul High Court Decision 2006Na67772 decided January 18, 2008

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court.

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

1. Regarding the plaintiffs' grounds of appeal

A. As to the misapprehension of legal principles as to fraud and the assertion of violation of the rules of evidence

The selection of evidence and the fact-finding belong to the exclusive authority of the fact-finding court unless there are special circumstances such as violation of the rules of evidence.

After compiling the adopted evidence, the lower court acknowledged the facts as indicated in its reasoning, and rejected the Defendant’s assertion that the sales contract (hereinafter “sale contract of this case”) for the instant officetel was cancelled on the grounds of Defendant’s fraud, on the following grounds: (a) it is difficult to view that the Defendant, despite being aware of the fact that Manoday was not installed by the end of 2005 at the Incheon International Airport International Airport International Service Center, placed an advertisement to the effect that “the scheduled completion date of 2005 the Manoday is an advertisement (hereinafter “the instant advertisement”); and (b) rather, it is highly probable that the Incheon International Airport Association (hereinafter “Airport”) which is the Intervenor, made the instant advertisement to believe that the Manoday was completed by the end of 2005.

In light of the above legal principles and records, the above determination by the court below is justifiable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to fraud or in violation

B. As to the misapprehension of legal principles as to errors and the assertion of violation of the rules of evidence

In full view of the adopted evidence, the lower court rejected the Plaintiffs’ assertion that the sales contract of this case was revoked on the ground of the mistake of intent, on the ground that there was no evidence to deem that the content of the instant advertisement was the content of the contract between the parties at the time of the instant sales contract, and that there was no evidence to regard it as the content of the contract.

In light of the records, the above judgment of the court below is justifiable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to errors or the violation of

2. As to the Defendants’ grounds of appeal

A. As to the assertion of misapprehension of the legal doctrine on the liability for damages under the Act on Fair Labeling and Advertising

In full view of the adopted evidence, the lower court determined that the Defendant’s advertisement of this case by carrying out several indirect materials provided by the Airport Corporation without confirming or inquiring about the above content of the notice or the plan for the installation of the mother-day, etc. before the advertisement of this case was made, constitutes “the act of false or exaggerated advertising” under Article 3(1)1 of the Act on Fair Labeling and Advertising (hereinafter “Act on Fair Labeling and Advertising”), which was publicly announced on December 31, 2001.

In light of the records, the above determination by the court below is justifiable. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to false or exaggerated advertisements under the Advertising Act or liability for damages arising therefrom, or the

In addition, the main text of Article 11(1) of the Act on the Labeling and Advertising provides that “The right to claim damages under Article 10 shall not be asserted in trial unless corrective measures under Article 7 have become final and conclusive,” but such restriction is added only to “the case where corrective measures are taken under Article 7” as clearly prescribed in the same Article. According to the record, it can be known that the defendant was not subject to corrective measures under Article 7 of the same Act in this case, so there is no ground for the defendant’s assertion that the plaintiffs cannot claim the right to claim damages under Article 10 of the same Act in trial.

B. As to the assertion of misapprehension of the legal principles on the duty of disclosure or duty of explanation under the principle of good faith

The lower court determined that the Defendant’s offering of false information through the instant advertisement without making any effort to accurately verify whether the establishment of the instant marina day was realized is in breach of the duty of disclosure under the good faith principle as to important circumstances that may affect the decision-making of the Plaintiffs at the negotiation stage of the instant sales contract, and thus, is liable for tort under the Civil Act.

In light of the records, the above judgment of the court below is just, and there is no error of law by misunderstanding the legal principles as to the duty of disclosure or duty of explanation under the good faith principle. In this case where the issue is whether or not tort liability under the Civil Act is established with respect to the defendant's active provision of false information, the judgment of the court below, which

C. As to the misapprehension of the legal principle as to the assessment of damages

In a lawsuit seeking compensation for damages due to a tort, where 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 in proximate causal relation by comprehensively taking into account all the relevant indirect facts, such as the relationship between the parties revealed by the result of examination of evidence and the purport of the entire pleadings, the background leading up to the occurrence of a tort and property damage therefrom, the nature of the damage, and the overall situation after the occurrence of the damage (see, e.g., Supreme Court Decision 2002Da6951, 6968, Jun.

In full view of the adopted evidence, the lower court determined that it is reasonable to view the amount of damages as 15% of the sales price in consideration of the circumstances set forth in its reasoning, on the premise that it is difficult to determine the decline in the exchange value of the instant officetel due to the failure to install a Manoday, on the ground that the government’s office building that develops the Incheon International Airport into the Dob Airport as well as the situation where the building price of the instant officetel falls below 27 through 28% compared to the sale price, is reflected not only in the situation where the Manoday was not constructed but also in the situation where the commercial zone of the surrounding city is not developed, and that it is difficult to determine the decline in the exchange value of the instant officetel due to the failure to install a Manoday.

However, as recognized by the lower court, the decline in the market price of the instant officetel compared to the initial sales price of the instant officetel is the result of a combination of various factors other than the installation of Marail Day. In light of the record, the government had a plan to construct the Incheon International Airport as a one-time exchange with people, such as transportation, information, logistics, commerce, shopping, leisure, etc., and cultural and information, as well as the initial international airport traffic center, but at least within a certain period of time, there was no lack compared to other foreign airports with the disposal capacity of passengers and cargo sector, and there was no difference in the outcome from the initial objective purpose of the instant officetel, such as the activation of international business area. In addition, since the instant officetel was sold in lots, there was a decline in the real estate price in Korea due to the rapid decline in the domestic and foreign competition and real estate market after the instant officetel, and the increase in the market price of the Incheon International Airport in terms of the increase in the sale price and the increase in the sale price of the instant officetel in 20 years before and after the exchange of an officetel.

Nevertheless, without examining the detailed comparison of the above circumstances affecting the decline in the value of the instant officetel, the lower court presumed that more than 15% of the total market price of the instant officetel was caused by the installation of Mano-day, which was 27 through 28%. The lower court erred by misapprehending the legal principles on the calculation of damages caused by tort, or failing to exhaust all necessary deliberations. The allegation in the grounds of appeal pointing this out is with merit (On the other hand, according to the records, the Plaintiffs did not properly confirm the plan to install Mano-day, which is an important matter that may have a significant impact on the exchange value of the instant officetel when entering into the sales contract of this case, and did not believe that the Defendant, the Plaintiff, as the subject of the instant construction, has committed negligence, and the above negligence by the Plaintiffs contributed to the Plaintiffs’ damages due to the instant advertisement. Therefore, even if the Defendant did not assert the Plaintiffs’ negligence, the lower court should have determined the degree of negligence by considering the degree of the Plaintiffs’ damages to be borne by the Defendant due to the falsity and division of the instant advertisement.

3. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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 Kim Ji-hyung (Presiding Justice)