2014Gahap39928 Compensation for damages due to non-performance of obligation

A

B

May 28, 2015

6.6.11

1. The defendant shall pay to the plaintiff KRW 334,512,00 and its amount shall be from October 7, 2014 to the day of complete payment.

20% of the annual interest rate shall be paid.

2. The costs of the lawsuit are assessed against the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

A. The registration of ownership transfer was completed on December 22, 2003 in the name of the Defendant on the ground of the sale on November 20, 2003 with respect to the land of Seongdong-gu Seoul Metropolitan Government 29.8 square meters and D 51 square meters (hereinafter “each land of this case”).

B. On December 3, 2003, the Plaintiff entered into a sales contract to purchase each of the instant land from the Defendant (hereinafter “the instant sales contract”) and completed the registration of ownership transfer on the 22th of the same month.

C. Although the Geum-dong District Housing Association did not sell each of the instant lands to the Defendant, Defendant asserted that he completed the registration of transfer of ownership by forging a sales contract, sales contract, resolution, etc., and filed a lawsuit against the Plaintiff and the Defendant to implement the procedure for cancellation of each of the above transfer of ownership as to each of the instant lands as Seoul Dong District Court Decision 2007Gahap15934, and the said court accepted the claim of the Geum-dong District Housing Association on March 13, 2009 and sentenced the Plaintiff and the Defendant to cancel the registration of transfer of ownership.

D. The Plaintiff and the Defendant appealed as Seoul High Court No. 2009Na36175, and the appellate court revoked the first instance judgment on November 19, 2009 and rendered a decision to dismiss the claim of the Geum-dong District Housing Association on the grounds that although the Geum-dong District Housing Association was a registered titleholder of each of the instant land, it cannot be deemed that it had the authority to dispose of each of the instant land.

E. As to this, the Financial Dong District Housing Association filed an appeal with the Supreme Court Decision 2009Da105215, which held that even if the owner granted the right of disposal to a third party, it cannot be deemed that the owner’s right of disposal is restricted solely on the ground that the owner granted the right of disposal to a third party, unless ownership is lost by the third party’s disposal act conducted by the right of disposal.

On March 13, 2014, the appellate court reversed the judgment, and sentenced the case to the Seoul High Court.

F. After remanding, the appellate court (Seoul High Court 2014Na18003) rendered a judgment dismissing the appeal of the plaintiff and the defendant on July 1, 2014, deeming the judgment of the first instance to be justifiable, and rendered a judgment dismissing the appeal of the plaintiff and the defendant, which became final and conclusive as it is difficult.

[Reasons for Recognition] Facts without dispute, Gap evidence 1-1, 2, Gap evidence 2, Gap evidence 3-1 to 4, the purport of the whole pleadings

2. Determination

A. The defendant's obligation to compensate for damages

According to the above facts, as the above judgment ordering the cancellation of each ownership of the plaintiff and the defendant's name with respect to each of the land of this case became final and conclusive, the defendant's obligation to transfer ownership pursuant to the sales contract of this case against the plaintiff became impossible. Thus, the defendant is liable to compensate the plaintiff for damages due to default.

B. Scope of liability for damages

1) Where a judgment ordering the seller to cancel the ownership transfer registration in the lawsuit for cancellation of registration filed by the true owner and the seller becomes final and conclusive, and the seller’s obligation to transfer ownership becomes impossible to perform the obligation to transfer ownership, the base point of time for calculating the amount of damages is the time the said judgment becomes final and conclusive (see Supreme Court Decision 92Da25946, Apr. 9, 1993).

2) In addition to the purport of the entire pleadings by the appraisal corporation, which had been an appraiser, the market price of each of the instant lands at the time of the above final judgment can be recognized as 334,512,000 won due to the Plaintiff’s non-performance of obligation, and the Defendant’s damages amounting to 334,512,00 won

The Defendant is obligated to pay damages for delay calculated at the rate of 20% per annum as stipulated by the Act on Special Cases concerning Expedition, etc. of Legal Proceedings from October 7, 2014 to the date of full payment, which is clear that the application for correction of the purport of the instant claim was served on the Defendant.

3. Conclusion

The plaintiff's claim of this case is justified and it is so decided as per Disposition.

Judges Kim Jong-jin

Judges Lee Dong-ju

Judges Kim Jong-Un