2016Da266934 Claims for damages

person

Han Asset Trust Co., Ltd

Dong Fire Insurance Co., Ltd.

Seoul High Court Decision 2016Na2033569 Decided October 21, 2016

April 13, 2017:

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

The grounds of appeal are examined.

1. As to the Defendant’s grounds of appeal, a preservative measure, such as a provisional attachment or a provisional disposition, is executed by the court’s trial, but whether a substantive claim exists shall be entrusted to the lawsuit on the merits and shall be subject to the obligee’s responsibility. Thus, in a case where the execution creditor lost the lawsuit on the merits after the execution of the preservative measure, it is presumed that the execution creditor was intentional or negligent, unless there is any special counter-proof as to the damage incurred by the obligor due to the execution of the preservative measure, and therefore, he/she is liable to compensate for the damage caused by the unfair execution (see, e.g., Supreme Court Decision 94Da6529, Apr

According to the reasoning of the judgment of the court below, the court below, citing the reasoning of the judgment of the court of first instance, determined that the defendant is liable to compensate the plaintiff for the damages suffered by the plaintiff due to the execution of the provisional seizure of this case, since the judgment of the court of first instance has become final and conclusive after the execution of the provisional seizure of this case against the defendant.

In light of the above legal principles and records, the judgment of the court below is just, and contrary to the defendant's grounds of appeal, there is no error of law by misapprehending the legal principles on unfair preservative measures.

2. Plaintiff’s ground of appeal

According to the reasoning of the judgment below, the court below recognized the defendant's liability for damages, and determined that the defendant's liability for damages should be limited to 70% of the total amount of damages by comprehensively taking account of the following facts: (a) the defendant's liability for damages was recognized as the amount equivalent to the interest accrued from the date of deposit of KRW 8,958,250,00 (the amount equivalent to the difference between the interest accrued to the deposit and the interest accrued to the deposit amount at the rate of 5% prescribed in the Civil Act, among the mutual aid funds of this case deposited by Anhys Association among the fisheries cooperatives which are the third debtor due to the provisional attachment, etc. of this case; (b) the provisional attachment of this case cannot be deemed as non-founded; (c) the Heung Fire & Marine Insurance Co., Ltd., which had been in a legal position similar to the defendant, had already received the provisional attachment decision of this case with the plaintiff as the debtor before the decision of provisional attachment of this case; and (d)

However, it is difficult to view that all the above circumstances presented by the court below are grounds for limiting the defendant's liability for damages. Moreover, there is no circumstance to deem that there was the plaintiff's negligence or contribution with respect to the occurrence and expansion of damages equivalent to the above interest in arrears.

Ultimately, the lower court erred by misapprehending the legal doctrine on limitation of liability for damages, thereby adversely affecting the conclusion of the judgment. The Plaintiff’s ground of appeal assigning this error is with merit.

3. 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.

Justices Cho Jong-hee, Counsel for the presiding judge

Justices Kim Chang-tae, Counsel for the defendant

Justices Park Sang-ok