Where the duty to open a connecting passage between commercial buildings and subway stations is impossible to perform, causing property damage, such as decline in exchange value, and it is probable that such damage was incurred in light of the transaction status of surrounding real estate, etc., the damage caused by impossibility of performing the duty to open the connecting passage (=ordinary damage)

In the absence of special circumstances, ordinary damages under Article 393(1) of the Civil Act refer to damages to the extent deemed ordinarily to occur in light of the transactional notion or empirical rule of society in the event of nonperformance of such kind, and damages due to special circumstances under Article 393(2) refer to damages arising from the individual and specific circumstances of the parties. In the event that the duty to open the connecting passage between commercial buildings and subway stations has been impossible to be fulfilled, the buyer suffered property damages, such as decline in exchange value, etc., and in light of the transaction situation of surrounding real estate, etc., if it is acknowledged that there is probability that he/she suffered damages, such as decline in exchange value, etc., due to non-establishment of the connecting passage between commercial buildings and subway stations, commercial buildings and subway stations have occurred due to nonperformance of the duty to open the connecting passage

Articles 390 and 393 of the Civil Act

Supreme Court Decision 2006Da25745 Decided December 24, 2008 (Gong2009Sang, 82)

Plaintiff 1 and 15 others (Attorney Kim Dong-dong, Counsel for the plaintiff-appellant)

Defendant corporation

Seoul High Court Decision 2008Na14222 decided February 5, 2009

The part of the judgment of the court below regarding the claim for damages against property due to the failure to establish the connecting passage shall be reversed, and that part of the case shall be remanded to the Seoul High Court.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

In light of the circumstances of the judgment, the court below recognized the facts after compiling the adopted evidence, and found that the sale contract in this case was concluded under the same condition even though the land price in the sale contract in this case is not determined based on the size of the share of the site indicated in the sale contract in this case, as the plaintiffs were aware that the share of the site stated in the sale contract in this case was erroneously calculated at the ratio of the sale area and that the ownership of the site actually registered is calculated otherwise, the sale contract in this case was concluded under the same condition. Thus, it is reasonable to view that the sale contract in this case was concluded with regard to the share of the site ownership

Examining the reasoning of the judgment below in light of the records, the decision of the court below rejecting this part of the plaintiffs' assertion is just, and it is not erroneous in the misapprehension of legal principles as to the seller's warranty liability in the case of shortage in quantity under Article 574

2. Regarding ground of appeal No. 2

The main text of Article 390 of the Civil Act provides that “If an obligor fails to perform his/her obligation in accordance with the substance of the obligation, an obligee may claim damages.” The purpose of compensation for damages is to restore the status that an obligee would have occurred if the obligor had performed his/her obligation properly, so an obligor who violated the contract shall compensate for the same economic benefits as the contract was completely performed. Meanwhile, Article 393(1) of the Civil Act provides that “Compensation for damages caused by nonperformance of obligation shall be limited to ordinary damages.” Article 393(2) of the Civil Act provides that “The liability for damages caused by special circumstances shall be limited to where the obligor knew or could have known of such special circumstances.” Article 390(1) provides that “The ordinary damages caused by the nonperformance of the obligation to establish a commercial building shall be limited to where the obligor knew or could have known of such fact.” Inasmuch as the ordinary damages caused by special circumstances under paragraph (2) refer to damages arising from the occurrence of the obligation to establish a commercial building between the parties, individual and specific circumstances (see Supreme Court Decision 2006Da2575, etc.).

According to the above legal principles and records, although it seems that the damage was caused to the plaintiffs due to the failure of the defendant to establish the connecting passage due to the decline in the exchange value of each of the building of this case, the court below rejected this part of the plaintiffs' assertion on the grounds that there was no evidence to acknowledge that there was no property damage due to the failure to establish the connecting passage, without properly examining the property damage caused by the failure to perform the duty to establish the connecting passage. Such judgment of the court below is erroneous in the misunderstanding of facts against the rules of evidence, incomplete deliberation, and misapprehension

3. Conclusion

Therefore, the part of the judgment of the court below regarding the claim for damages against the nonperformance of the duty to establish a connecting passage is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeals by the plaintiffs are all dismissed. It is so decided as per Disposition by the assent

Justices Kim Nung-hwan (Presiding Justice)