The case where the judgment of the court below is reversed and the reasoning of the judgment are inconsistent with each other.

Articles 208 and 424 of the Civil Procedure Act

Plaintiff (Attorney Kim Jong-won, Counsel for the plaintiff-appellant)

Defendant (Law Firm Jung-gu, Attorneys Park Young-chul et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2005Na6226 Decided December 16, 2005

Of the part concerning delay damages of KRW 4,00,000 as stated in paragraph (1) of the judgment of the court of first instance, the part against the defendant ordering the defendant to pay the amount exceeding the damages for delay which is ordered under the below shall be reversed, and the judgment of the court of first instance shall be revoked, and corresponding plaintiff's claim shall be dismissed. The defendant shall pay 5% per annum from October 1, 1993 to December 16, 2005, and 20% per annum from the next day to the full payment date. The remaining appeal by the defendant shall be dismissed. The two-fifths of the total costs of lawsuit shall be borne by the plaintiff, and the remainder by the defendant.

1. Regarding ground of appeal No. 1

A. The first instance court and the lower court’s judgment

(1) The judgment of the court of first instance ordered the Plaintiff to pay to the Defendant the amount of KRW 4,00,000, which is the balance of the re-sale price of this case, and damages for delay calculated at the rate of 19% per annum, which is the agreed interest rate from October 1, 1993 to June 1, 2005, which is the date of the judgment of the court of first instance, and 20% per annum from the next day to the date of full payment. The Plaintiff dismissed the remainder of the Plaintiff’s claim.

(2) All of the plaintiff and the defendant appealed against each of them. The court below rejected the plaintiff's assertion that the plaintiff's appeal partially accepted the plaintiff's appeal and ordered the defendant to pay additional KRW 51,00,000 and delay damages therefor, and it cannot be acknowledged that the plaintiff and the defendant agreed to pay damages for delay at the rate of 19% per annum for the total purchase price of KRW 5,00,000 and KRW 55,000,000 and KRW 4,000 cited in the first instance judgment for the damages for delay shall be 0.0% per annum from the day following the agreed repayment date to June 1, 1993 to 0.0% per annum from the 10.0% per annum from the 10.0th day after the 10th day after the 1993th day after the 10th day after the 1993th day after the 10th day after the 10th day after the 10th day after the 10th day after the 20th day after the 10th day after the 10th day after the 20th day after the 10th day below's.

B. The judgment of this Court

Even according to the reasoning of the judgment below, the court below cannot order the defendant to pay the agreed damages for delay at the rate of 19% per annum with respect to the 4,000,000 won cited in the court of first instance, and the defendant who filed an appeal against this part is reasonable to have a dispute over the existence or scope of his obligation to pay at the court below. Accordingly, with respect to the damages for delay of the above 4,00,000 won from October 1, 1993 to December 16, 2005, which is the date of the decision of the court below, the interest 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 following day to the date of the decision of the court below.

Nevertheless, according to the decision of the court below, the court below ordered the defendant to pay the above 4,000,000 won exceeding the just delay damages. Thus, the judgment of the court below is erroneous in the misapprehension of law which affected the conclusion of the judgment, and the ground of appeal pointing this out has merit. Thus, this part of the judgment below cannot be reversed.

2. Regarding ground of appeal No. 2

In light of the records, the fact-finding by the court below that the evidence submitted by the defendant alone is not sufficient to recognize the grounds for a counterclaim and a waiver of a claim is just, and therefore, it cannot be deemed that there is an error of law such as incomplete deliberation of the court below and misconception of facts against the rules of evidence as alleged in the grounds for appeal. The ground for

3. Conclusion

Therefore, among the part concerning delay damages of KRW 4,00,000 in the judgment of the court of first instance as stated in Paragraph (1) of the judgment of the court below, the part against the defendant ordering payment of 5% per annum as stipulated in the Civil Act from October 1, 1993 to December 16, 2005, which is the date of the judgment of the court below, and 20% per annum as stipulated in the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. The part against the defendant ordering payment of the amount exceeding the amount for delay damages of KRW 4,00,000 as stated in Paragraph (1) of the judgment of the court of first instance shall be reversed. Since this part is sufficient for the court of first instance to directly judge, the plaintiff's claim corresponding to the above reversed part shall be dismissed as it is unfair, and the plaintiff's claim corresponding to this part shall be dismissed as it is so decided as per Disposition by the assent of all participating Justices.

Justices Park Si-hwan (Presiding Justice)