[1] The point of time to determine the amount of damages in default due to the debtor's non-performance

[2] Where the object of the non-performance of the debtor's obligation is a bond with warrant, which is a bond with foreign currency, and where there is a normal transaction example, whether the value of the bond should be evaluated as the market price and the amount of damages should be assessed (affirmative)

[3] The case where limitation of liability pursuant to the principle of comparative negligence or fairness is allowed for the obligor’s liability for damages caused intentionally by default

[4] The order of offsetting negligence (or limitation of liability for fair apportionment of damages) and offsetting profits and losses in calculating the amount of damages due to tort or nonperformance (=in first of all negligence offsetting)

[1] Articles 390, 393, 395, and 544 of the Civil Act / [2] Articles 390, 393, and 544 of the Civil Act / [3] Articles 2, 390, 393, and 396 of the Civil Act / [4] Articles 2, 396, and 763 of the Civil Act

[1] Supreme Court Decision 2005Da6337 decided Sep. 20, 2007 (Gong2007Ha, 1626) / [3] Supreme Court Decision 2006Da16758, 16765 decided Oct. 25, 2007 (Gong2007Ha, 1806) / [4] Supreme Court Decision 89Meu29129 decided May 8, 199 (Gong190Ha, 1245), Supreme Court Decision 95Da24340 decided Jan. 23, 196 (Gong196Sang, 659)

Dongyang Integrated Financial Securities Co., Ltd. (Law Firm Namsan et al., Counsel for the defendant-appellant)

Mod Securities Co., Ltd. (Law Firm Bosch Rexroth, Attorney Kang Jung-tae, Counsel for defendant-appellant

Seoul High Court Decision 2004Na84452 decided May 2, 2007

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

1. Plaintiff’s ground of appeal

A. The amount of damages for compensatory damages caused by delay of performance shall be calculated on the basis of the market price at the time when the reasonable period for which the original performance had been notified, and the amount of compensatory damages caused by nonperformance of performance shall be calculated on the basis of the market price at the time when the performance was performed. The amount of damages for nonperformance due to the debtor's refusal of performance shall be calculated on the basis of the market price at the time of refusal of performance where the debtor clearly expresses his/her intent to refuse performance and can claim damages without notice (see Supreme Court Decision 2005Da6337, Sept. 20, 2007, etc.). Meanwhile, where the object of refusal of performance is bonds with warrants denominated in foreign currency, the value of the bonds shall be assessed on the basis of the market price at the time of refusal of performance, if there is a normal transaction example that reflects the objective exchange value at the market price

The court below, around February 8, 2001, determined that the appraisal of the instant bonds with warrants (hereinafter “instant bonds”) issued by Korea SDR Korea (hereinafter “KS”) was based on the market price appraisal of Nonparty 1’s bonds and the fact-finding on Nonparty 1’s appraiser Nonparty 1, not on the market price appraisal of the instant bonds at the base date of appraisal, but on the basis of credit assessment information, market profit information, etc. It is difficult to believe it in light of the following facts. Rather, the court below’s fact-finding results on the Chairman of the Korea Securities Depository of Korea (hereinafter “KS”), and it is reasonable to see that the appraisal of the instant bonds with warrants was conducted from October 1, 200 to June 30, 201 as stated in the separate sheet in the court below’s judgment, and that there was no error of law in the misapprehension of legal principles as to the average of 10% of the amount of the instant bonds with warrants from 30% to 40% of the market price and 15% of the total amount of the instant bonds.

B. In a case where a debtor is liable for damages due to nonperformance to a creditor, if there is any negligence on the part of the creditor or if it is necessary to ensure the fairness of the burden of damages, the debtor's liability may be limited. However, it is not permissible in principle to assert that the debtor who intentionally caused the nonperformance has reduced his/her liability on the ground of the creditor's care. However, this is due to the fact that the debtor's final possession of profits due to the nonperformance leads to an outcome contrary to the principle of fairness or the principle of good faith. In a case where the above result is not caused, it is possible to limit the liability based on the principle of comparative negligence or the principle of fairness (see, e.g., Supreme Court Decision 2006Da16758, Oct. 25,

In full view of the admitted evidence, the court below held that the non-party 3 and 4, an employee of the defendant, signed a redemption contract, which is a comprehensive basic contract applicable to the three-year securities transaction prepared by the defendant, and signed a securities lending contract with the non-party 2, who is an employee of the defendant, to the non-party 3 and the non-party 4 to whom the defendant refused to return the claim of this case, because the non-party 6 was merged with the Dongyang Total Finance Co., Ltd. on April 3, 200, and the Dongyang Total Finance Co., Ltd. was merged with the plaintiff on December 1, 201; hereinafter referred to as the "Seyang Total Finance Co., Ltd."), the non-party 2, a commercial employer, was not liable for damages of this case since the non-party 2's refusal to return the claim of this case due to the non-party 2's rejection of the claim of this case from May 20, 2000.

2. As to the Defendant’s ground of appeal

A. The court below acknowledged that there was no intention or negligence on the part of the defendant's refusal to fulfill his duty to return the claim of this case since the provisional seizure against the claim of this case entrusted by the defendant was conducted by the defendant, and thus, the defendant could not extinguish the claim of this case. Thus, the defendant's refusal to fulfill his duty to return the claim of this case did not have intention or negligence. Upon considering the admitted evidence, the defendant applied for provisional seizure against the claim of USD 10 million with the amount claimed, Seoul District Court Southern Branch Branch 2001Kahap55 on January 22, 2001 and applied for provisional seizure against the defendant against the non-party who is the non-party debtor and the non-party non-party debtor, the provisional seizure order of this case provisionally attached the claim against the non-party debtor as stated in the separate seizure against the non-party non-party debtor. The court below rejected the defendant's claim of this case as to the non-party's provisional seizure against the non-party defendant's non-party debtor's claim of this case as to the above provisional seizure against the defendant's claim of this case.

B. The fact-finding or the ratio of limitation of liability for the purpose of offsetting negligence or fair burden of damage in a damage compensation case falls under the exclusive authority of the fact-finding court unless it is deemed that it is remarkably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decisions 2006Da62782, Jan. 11, 2007; 97Da47989, Oct. 27, 1998). In light of the records, the fact-finding or the ratio of limitation of liability of the court below as to the grounds for limitation of liability is within the acceptable scope, and it is not clearly unreasonable in light of the principle of equity. Thus, the argument in the grounds for appeal on this point is not acceptable.

C. In case where an obligee’s negligence with respect to a tort or default and the obligee’s profit was made therefrom, the amount of damages calculated shall be set off after offsetting the negligence (see, e.g., Supreme Court Decisions 89Meu29129, May 8, 1990; 95Da24340, Jan. 23, 1996); and the same applies to the limitation of liability to ensure the fairness in the burden of damages as well as comparative negligence.

In calculating the Plaintiff’s amount of damages due to the nonperformance of the obligation of this case, the court below calculated the liability limitation to ensure fair burden of damages by first deducting profits from the amount of damages as indicated in the judgment, and taking account of various circumstances indicated in the records, and such judgment of the court below is erroneous in the misapprehension of legal principles as to the calculation of damages, and it is obvious that such illegality has influenced

The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for a new trial and determination. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)