A. Whether the property to secure another's property is included in the auction at will of the debtor under Article 578 (1) of the Civil Code

B. The case that reversed the part of the judgment of the court below on the ground that the defendant's defense dispute is recognized as reasonable

A. The debtor under Article 578(1) of the Civil Code includes the property to secure another's property in a voluntary auction, so when the successful bidder exercises the right to cancel the contract lawfully, the property to secure another's property shall have the obligation to restore the successful bidder to its original state.

B. The case that reversed the part of the judgment of the court below on the ground that the defendant's defense dispute is recognized as reasonable.

A. Article 578(1) of the Civil Act; Article 3 of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings; Article 407 of the Civil Procedure Act

Supreme Court Decision 86Meu1876 Decided May 26, 1987

[Judgment of the court below]

Defendant-Appellant Park Jong-il, Counsel for the defendant

Gwangju High Court Decision 86Na661 delivered on October 2, 1987

The part of the damage compensation for delay in the part against the defendant in the original judgment shall be reversed and decided as follows.

The defendant shall pay to the plaintiff the amount of 15,00,000 won with an annual amount of 5 percent from May 2, 1986 to October 2, 1987 at the rate of 25 percent per annum from the day from the day after the date of full payment to the day of full payment.

The plaintiff's remaining claims are dismissed.

The defendant's remaining appeals are dismissed.

The costs of appeal shall be borne by the defendant.

As to the Grounds of Appeal:

Since it is reasonable to view that the debtor is also included in the property to secure another's property in a voluntary auction under Article 578 (1) of the Civil Code, when the successful bidder exercises the right to cancel the contract lawfully, the property to secure another's property will assume the obligation to restore the successful bidder to the original state.

The original judgment that judged the instant case on the same view is right and wrong, and there is no violation of law, such as theory of lawsuit.

However, the court below acknowledged the fact that the plaintiff filed a claim for damages under Article 578 (3) of the Civil Act until the first instance court, but changed the exchange with the claim for restitution under Article 578 (1) of the Civil Act at the court below's original judgment, and only partially accepted the claim, and, despite the fact that the process of the lawsuit is clear that it is the defendant's resistance, there is a duty to pay the delayed compensation amount at the rate of 25% per annum from the date of service profit of the first instance court to the date of the first instance court's decision. In light of the above litigation situation, the court below determined that the defendant's dispute about the existence and scope of the obligation of the execution of this case is reasonable until the time of the decision of the court below's decision, so the court below should not apply the same paragraph under Article 578 (1) of the Civil Act until the time of the first instance court's decision, and that the part of the court below's decision which affected the conclusion of the judgment by misapprehending the legal principles as to the definition of Article 3 (2) of this Act.

In addition, according to the above, as the party members are sufficient to judge, the final judgment is to be rendered.

Thus, the defendant is obligated to pay to the plaintiff the amount of 15,00,000 won with 5% per annum from May 2, 1986 to October 2, 1987, and 25% per annum from the next day to the date of full payment from the record that the copy of the gugu of the first instance court was delivered to the defendant. Thus, the plaintiff's claim is justified only within the scope of the above recognition and it is unfair to dismiss the remainder.

For the above reasons, the appeal except the part of the defendant's appeal against delay compensation is dismissed as without merit, and the appeal against the part of compensation for delay is justified, and it is so decided as per Disposition by the assent of all participating judges who decide to render a final judgment.

Justices Lee Byung-hee (Presiding Justice)