[1] In the case of real estate transaction, the duty of disclosure to the trading partner under the good faith principle is imposed

[2] The case holding that the seller of an apartment is obligated under the good faith principle to notify the seller of the fact that the garbage landfill is scheduled to be constructed near the apartment complex

[3] Whether a seller of apartment sales can only claim damages without cancellation of the sales contract on the ground that the seller violated the duty of disclosure under the good faith principle of the seller of apartment (affirmative)

[4] In a case where a seller of an apartment did not notify the seller of the fact that the garbage landfill site is scheduled to be constructed in the vicinity of the apartment complex, the case holding that even if the sale price is increased due to the increase in real estate competition, the seller's price is higher than the sale price, it is equivalent to the decline in the value of the apartment that takes into account the construction of the garbage landfill site

[1] Articles 2 and 110 of the Civil Act / [2] Articles 2 and 110 of the Civil Act / [3] Articles 2, 110, and 750 of the Civil Act / [4] Articles 110, 393, and 763 of the Civil Act

Kim Young-young et al. (Law Firm Bupyeong General Law Office, Attorneys Kim Yong-nam et al., Counsel for the plaintiff-appellant)

Korea National Housing Corporation (Law Firm Squa, Attorneys Park Jong-chul et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2003Na41540 delivered on August 11, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

If it is evident in light of the empirical rule that the other party to a transaction would not have been notified of certain circumstances in real estate transactions, it is obligated to notify the other party of such circumstances in advance in accordance with the principle of good faith. The subject of such duty of disclosure can be acknowledged not only by the direct law but also by the general principles of contract, customs, or cooking.

In the same purport, the court below's determination that the fact that the garbage landfill site of this case was scheduled to be constructed near the apartment complex of this case is justifiable in that the defendant should be notified to the seller under the good faith principle, and the above fact does not include the matters to be notified at the time of public notice of recruitment stipulated in Article 8 (4) of the Rules on Housing Supply. Therefore, the defendant's ground of appeal that did not notify is not acceptable.

2. Regarding ground of appeal No. 2

Even if the waste reclamation site of this case was at the stage of receiving the approval for installation of waste disposal facilities at the time of concluding the sales contract, it is reasonable to determine that such fact is subject to the duty of disclosure as long as it can be recognized that it could affect the conclusion of the sales contract of this case. Therefore, there is no error of law by misapprehending the legal principles as otherwise

In addition, the defendant asserts that the scheduled site of the garbage reclamation site of this case is not the end of October 1999 but November 5, 1998 by the day indicated in the sale advertisement site, but rather the end of November 5, 1998, but it is merely a dispute over the legitimate fact-finding by the court below, and thus, it cannot be accepted as the ground of appeal.

3. As to the third ground for appeal

Even though the approval disposition of the waste disposal facility installation plan of this case was invalidated through administrative litigation, the defect of the approval disposition of this case succeeded to the urban planning decision of the waste reclamation site of this case, or furthermore, the waste reclamation site construction plan of this case cannot be deemed to have been blanked. Rather, according to the facts recognized by the court below, the Namyang-si is implementing construction of the waste reclamation site in the same area again after treating procedural defects by reducing only the size of the waste reclamation site of this case even after the above invalidation judgment of this case was rendered. Thus, since the waste reclamation site of this case which was being constructed before the above invalidation judgment cannot be deemed to be a separate facility, this part of the ground for appeal is

4. As to the fourth ground for appeal

In Supreme Court Decision 2001Du11229 Decided September 26, 2003, ruled that the advertisement phrase written by the defendant on the advertisement for sale in lots is somewhat exaggerated but it does not constitute false advertisements as much as socially acceptable extent. In this case, the issue of whether the defendant's failure to notify the seller of the scheduled construction of the waste landfill to the buyer is completely different from the issue of whether the duty of disclosure under the good faith principle is violated is all different. Thus, there is no violation of the legal principles or the precedents as argued in the judgment below. The ground of appeal on this part is without merit.

5. Ground of appeal No. 5

A. Since the violation of the duty of disclosure constitutes deception by omission, the plaintiffs can cancel the sales contract on the ground of deception and seek the return of the sales price, and if they do not want to cancel the sales contract, only damages arising therefrom can be claimed. In such a case, the plaintiffs can cancel the sales contract itself and claim damages not to be claimed. This part of the ground of appeal cannot be accepted.

B. Since the assessment of damages should be based on the method that the court recognizes it as reasonable, the court below is justified in calculating damages according to the appraisal result as stated in its holding, considering the construction of the waste reclamation site for the plaintiffs' amount of damages, and it cannot be said that there was no damages to the plaintiffs on the ground that the market price of the apartment in this case was increased due to the overall increase in the real estate market thereafter, and thus the damages did not occur to the plaintiffs. The grounds of appeal on this part are without merit.

6. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Sung-tae (Presiding Justice)