(영문) 대법원 2017.7.11.선고 2017다216424 판결

1. The part of the judgment of the court below against the defendants as to damages for delay shall be reversed, and that part shall be modified as follows.

The Plaintiff

A. As to Defendant C’s KRW 15,500,00, and KRW 20,000 for Defendant H, and KRW 25,000 for Defendant L, M, and N, respectively, from May 9, 2014:

B. Defendant J shall pay 15,00,000 won as of October 11, 2014. Defendant W, X,Y, Z, AAB, AC, AC, and AD shall each be 6,24,210 won, and Defendant WE, AF, AG, AH, AH, AI, AJ, AK, and AK shall each be 13,750,00 won, with 6% per annum from July 28, 2017 to February 3, 2017, and 20% per annum from the next day to the day of full payment.

2. The defendants' remaining appeals are dismissed.

3. Of the total litigation costs, 20% is borne by the Plaintiff, and 80% is borne by the Defendants.

Reasons

1. The defendants' grounds of appeal are examined.

For the reasons indicated in its reasoning, the lower court determined that it is difficult to view the CD and the claim assignment contract between the Plaintiff as the object of a lawsuit trust, and rejected the remainder of the Defendants’ defenses other than the Defendant Z, and determined that the instant enforcement officer has the right to claim a down payment against the purchaser pursuant to Article 9 of the instant sales contract.

Examining the reasoning of the lower judgment in light of the record, the lower court’s aforementioned determination is justifiable. In so determining, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine regarding the interpretation of litigation trust or disposal document,

2. We examine the misapprehension of legal principles as to the validity of the assignment of claims in the grounds of appeal by Defendant H.

The lower court, on the grounds indicated in its reasoning, determined that a contract entered into between AM and CD was valid. Examining the reasoning of the lower judgment in light of the record, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine

3. As to Defendant H’s assertion of misapprehension of legal principles as to the application of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (hereinafter “Litigation Promotion Act”), the remaining Defendants are examined ex officio.

Article 3(2) of the Litigation Promotion Act provides, “Where it is deemed reasonable for an obligor to resist whether the obligor has an obligation to perform the obligation or to the extent thereof before a fact-finding judgment declaring that the obligor has an obligation to perform the obligation is rendered, paragraph (1) shall not apply to the reasonable extent.” However, if the obligor’s assertion was accepted in the first instance court by disputing the existence and the scope of the obligation to perform the obligation, even if such assertion was rejected in the appellate court, the assertion can be deemed to have a reasonable ground. Therefore, in such a case, the interest rate for delay damages as prescribed in paragraph (1) of the same Article cannot be applied until the date the appellate court rendered a judgment (see Supreme Court Decision 2010Da21696, Jul

In this case, the first instance court accepted the Defendants’ assertion and dismissed the Plaintiff’s claim against the Defendants. However, the lower court accepted all the Plaintiff’s claim against the Defendants by following the first instance court’s conclusion. If so, the lower court cannot apply the interest rate for delay damages as stipulated in Article 3(1) of the Act on Promotion of Litigation until the date of the lower judgment’s declaration pursuant to

Nevertheless, the lower court’s application of the interest rate for delay damages under Article 3(1) of the Litigation Promotion Act to Defendant C, H, L, M, and N as requested by the Plaintiff after the due date following the final delivery date of the copy of the instant complaint to Defendant J, the day after the delivery date of the written complaint to Defendant J, and to the remaining Defendants from the day after the delivery date of the copy of the written request for change and the written request for change to the cause of the claim to the remaining Defendants is erroneous in misapprehending the legal principles as to the application of the above provision, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the part of the judgment below against the Defendants against delay damages is reversed, and it is sufficient for the Supreme Court to render a judgment. According to the facts duly established by the court below, the judgment below is reasonable in accordance with Article 437 of the Civil Procedure Act. As to ① Defendant C is 15,500,000 won, Defendant H is 20,000 won, Defendant L, M is 25,000,000 won, each of which is the day following the last delivery date of the complaint of this case, and ② Defendant J is reasonable in relation to KRW 15,00,000 from October 11, 2014 to the day following the second day following the delivery date of the copy of the complaint of this case, ③ It is reasonable in relation to Defendant W, X, Y, Z, AB, AC, AD is 6,240,2100 won, Defendant H is 25,71,300,000 won per annum, and each of its claims are 15,0,70,30.

Therefore, the plaintiff's claim for damages for delay against the defendants shall be accepted within the scope of the above recognition, and each remaining claim shall be dismissed as it is without merit. Thus, the part of the judgment of the court below on damages for delay against the defendants shall be reversed, and the remaining appeal by the defendants shall be dismissed. All of the remaining appeals by the defendants shall be dismissed. The plaintiff shall bear 2/10 of the total costs of the lawsuit by applying the main text of Article 105, Article 98, and the main text of Article 101 of the Civil Procedure Act, and the remainder shall be