[1] In a case where a creditor bears an obligation against a third party due to a default, the standard for determining whether the damage was caused to the creditor

[2] The case holding that if a party to a real estate exchange contract violated an agreement and the other party was sentenced to a judgment against the lawsuit from a third party and the other party was subject to provisional attachment of another real estate, the other party's liability for the debt to the third party is realistic and conclusive, and the other party actually suffered loss equivalent to the amount of debt

[1] Damage to be compensated due to nonperformance is a clear and conclusive loss that has actually occurred, so if an obligee is liable to a third party due to nonperformance, the obligee’s obligation to claim the same amount as that of the third party’s liability as that of the third party is actual and conclusive, and thus, should be actually repaid. However, whether such obligation is deemed as real and conclusive, and thus, it should be objectively and reasonably determined in light of social norms.

[2] The case holding that if one of the parties to a real estate exchange contract agreed to perform the other party's loan obligations and the obligation to return lease deposit while it is in violation of this agreement, the other party was sentenced to a judgment of the court against which the other party was brought a lawsuit claiming the return of loan and lease deposit from the bank and the lessee and the other party was subject to provisional seizure, the other party's obligation obligations to the bank and lessee are real and conclusive, and thus, the other party's obligation obligations to the bank and lessee are in the nature that

[1] Articles 390 and 393 of the Civil Act / [2] Articles 390 and 393 of the Civil Act

[1] [2] Supreme Court Decision 92Da29948 delivered on November 27, 1992 (Gong1993Sang, 256), Supreme Court Decision 97Da28568 delivered on April 24, 1998 (Gong1998Sang, 1443), Supreme Court Decision 97Da4760 delivered on August 25, 1998 (Gong198Ha, 2308) / [2] Supreme Court Decision 76Da1002 delivered on October 29, 1976 (Gong1976, 9462)

Plaintiff

Defendant (Attorney Jeong-won, Counsel for defendant-appellant)

Seoul High Court Decision 2000Na49161 delivered on March 30, 2001

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

1. The judgment of the court below

In full view of his evidence, when the plaintiff and the defendant entered into an exchange contract with the plaintiff on March 14, 1998 to exchange three lots of forest land located in Gangwon-gun ( Address omitted), Gangwon-gun, the defendant owned by the plaintiff and the defendant, the court below decided that the plaintiff will succeed to the plaintiff's obligation to repay the lease deposit amounting to KRW 135 million to the non-party 1, who is the lessee of the plaintiff's real estate in this case, and that the plaintiff will pay KRW 10 million to the defendant according to the above agreement, and thereafter, the plaintiff paid KRW 10 million to the defendant pursuant to the above agreement and ordered the defendant to transfer the ownership of the real estate in this case to the defendant and delivered documents necessary for the registration of transfer of ownership of the real estate in this case to the non-party 1,000,000 won to the non-party 2, who was subject to the plaintiff's lease deposit and completed the registration of transfer of ownership by obtaining documents necessary for the registration of transfer of ownership of the real estate in the name of the plaintiff.

Based on such factual basis, the Plaintiff asserted that the Defendant is liable to pay the amount of KRW 135 million to the Plaintiff’s Chungcheong Bank in accordance with the above exchange contract and the amount of KRW 50 million to the Plaintiff’s lessee who did not perform the obligation to repay the lease deposit in the amount of KRW 50 million to the Plaintiff. The Plaintiff asserted that the Defendant is liable to compensate the Plaintiff for the amount of KRW 180 million,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000, in a loan claim filed by one bank.

Therefore, in the above facts, the court below held that the defendant's succession to the plaintiff's loan and the obligation to return the lease deposit constitutes an overlapping assumption of obligation or an acceptance of performance, and therefore the plaintiff is still liable in relation to the creditor, notwithstanding the exchange contract, notwithstanding the above exchange contract, the plaintiff is still liable in relation to the creditor. However, if the plaintiff is at the risk of being forced due to the non-performance of obligation, and the plaintiff is at the risk of being forced execution due to the defendant's non-performance of obligation, it is the defendant's non-performance of obligation under the exchange contract, and thus, the defendant is entitled to cancel the exchange contract and claim restitution. However, in order for the plaintiff to claim compensation for damages on that ground, the plaintiff's damage must be specific and realistic. In addition, the plaintiff's claim for the loan or the obligation to return from one bank or non-party 2 was filed with the claim for the return of the lease deposit and the judgment against the plaintiff was made as a provisional attachment, and it did not admit the plaintiff's claim for actual loss due to the plaintiff's claim.

2. The judgment of this Court

Inasmuch as the damages to be compensated due to nonperformance have been definitely incurred, in cases where an obligee bears a certain obligation against a third party due to nonperformance, the obligee’s obligation to claim damages for the same amount as the amount of obligation is realistic and conclusive, and thus, should be actually paid. However, whether such obligation is actual and conclusive, and thus, the existence of the damages actually incurred should be determined objectively and reasonably in light of social norms (see, e.g., Supreme Court Decisions 92Da29948, Nov. 27, 1992; 97Da28568, Apr. 24, 1998; 97Da4760, Aug. 25, 1998).

In light of the above legal principles, as alleged by the Plaintiff, the Defendant agreed to perform the Plaintiff’s obligation to repay the Plaintiff’s loan and the obligation to return the lease deposit at the time of the exchange contract with the Plaintiff, but did not perform the obligation in violation of the agreement, and thus, the Plaintiff was sentenced to a claim for the performance of the obligation to repay the loan and the obligation to return the lease deposit, and the Plaintiff was ruled against the Plaintiff by being subject to a lawsuit claiming the repayment of the loan and the obligation to return the lease deposit. Furthermore, if the Plaintiff was subject to provisional attachment against another real estate owned by the Plaintiff, the Plaintiff cannot repay the above loan and the deposit to the Han Bank and Nonparty 2, and thus, the Plaintiff’s obligation to the Han Bank and Nonparty 2 is actual and conclusive, and thus, it is deemed that the Plaintiff actually suffered damages equivalent to the amount of the obligation (see Supreme Court Decision 76Da1002, Oct. 29, 1976).

In light of the above, the court below rejected the plaintiff's claim on the ground that it cannot be deemed that the plaintiff actually suffered loss, and it erred in the misapprehension of legal principles as to the confirmation of loss in default of obligation, which affected the conclusion of the judgment. Thus, the plaintiff's ground of appeal pointing this out is justified.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the judgment of the court below is reversed, 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.

Justices Shin Shin-chul (Presiding Justice)