205.Joint 527 Damages, any other

Optional00 (360000-0000)

Chuncheon City 00,000-00

Attorney Lee In-bok, Counsel for the defendant-appellant

Korea

The representative of law, the Minister of Justice, and personnel

Litigation performers 000

August 26, 2005

September 9, 2005

1. The defendant shall pay to the plaintiff 109,060,000 won with 5% interest per annum from March 8, 2005 to May 9, 2005, and 20% interest per annum from the next day to the day of full payment.

2. The costs of lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The same shall apply to the order.

1. Basic facts

The following facts may be acknowledged as either in dispute between the parties or in each entry in Gap evidence 1 through 5, by integrating the whole purport of the pleadings:

A. As to Chuncheon-si 00, 282, 1,435m (hereinafter "the real estate of this case"), Nonparty 00 completed the registration of ownership transfer with the name of Kim 00 in accordance with the title trust agreement with Nonparty 1 Kim 00, and the Defendant completed the registration of ownership transfer with the name of the Defendant on August 18, 1980 due to the gift on June 17, 1980.

After that, the non-party 1 purchased the instant real estate from the defendant on January 26, 1981, and completed the registration of transfer of ownership under the name of the plaintiff on March 30, 1981 as the receipt No. 4699 of March 30, 1981, and again, the plaintiff purchased the instant real estate from the above Yellow 00 on May 23, 1987 and completed the registration of transfer of ownership under the name of the plaintiff on May 28, 1987 as the receipt No. 10787 of May 28, 1987.

B. After that, the above Kim 00, Kim 00 filed a lawsuit against the defendant, the above 00, and the plaintiff for the cancellation of each ownership transfer registration of the above real estate (Seoul District Court 90Gahap32303). On January 30, 2004, the Seoul High Court, which was the appellate court of the above case, declared that the above Kim 00 on the real estate of this case and the donation contract between the defendant, were legally cancelled by the defendant's expression of intent of cancellation of Kim 00, and thus, the registration of transfer in the name of the defendant was made invalid without any cause, and the above registration of transfer in the name of the plaintiff and the invalidation without any cause of each of the above ownership transfer registration in the name of the plaintiff is the registration of cancellation of each ownership transfer registration (hereinafter referred to as "the sales agreement of this case"). Accordingly, the defendant Yellow 00 and the plaintiff were ordered to implement the procedure for cancellation registration of each ownership transfer registration (hereinafter referred to as "the sales agreement of this case").

On March 19, 2004, the judgment of this case was finalized with respect to the above Yellow 00 and the plaintiff. The defendant appealed against the above judgment and appealed by the Supreme Court Decision 2004Da17917, but the dismissal of appeal was decided on August 16, 2004, and became final and conclusive against the defendant on the same day.

C. On the other hand, the real estate of this case was expropriated in Chuncheon before the judgment of this case became final and conclusive, and on the grounds that the real owner on September 23, 2003 could not be known, the land expropriation compensation amounting to KRW 109,060,00, which is ratified as a result of the market price appraisal at the time was deposited with the Chuncheon District Court, and the registration of transfer of ownership was completed in the name of Chuncheon City on September 25, 2003. The above Kim 00 was finalized by filing a lawsuit to confirm that the plaintiff is the holder of the right to receive the deposit (No. 2004Ga568 of the Chuncheon District Court), and the above judgment became final and conclusive on March 8, 2005.

D. On July 24, 1993, the deceased on July 24, 1993, the deceased on his wife, 00, Y0, Y00, Y00, Y00, and Y00 inherited the property according to the statutory shares of inheritance. The inheritor transferred the claim for damages against the above inheritor, instead of the claim for damages against the plaintiff by the above inheritor arising from the instant judgment on April 26, 2005, to the plaintiff, and notified the defendant of the transfer of the claim to the defendant on the same day.

2. Determination on the cause of the claim

According to the above facts, the real estate of this case, which is the object of each sale between the defendant and the plaintiff, is not the ownership of the seller at the time of the above sale, and as a result, such sale is the sale of another person's right under Article 569 of the Civil Code.

In general, as in the case of the sale of another person’s right, if the original owner against the seller in the lawsuit claiming the cancellation of the ownership transfer registration against the seller, the performance of the seller’s registration of ownership transfer against the buyer in light of the concept of social trade shall be deemed to have reached an impossible condition. In this case, in principle, the calculation of damages against the bona fide buyer shall be determined on the basis of the market price at the time when the seller acquired the right, which was the object of the sale, and becomes impossible to transfer it (see, e.g., Supreme Court Decisions 72Da2207, Mar. 13, 197; 92Da25946, Apr. 9, 1993).

Therefore, the defendant is liable to the plaintiff for damages equivalent to the market price of the real estate of this case on August 16, 2004 when the judgment against the defendant against the plaintiff was finalized. However, as seen above, since the above inheritor transferred the above claim against the defendant to the plaintiff, the defendant should pay the plaintiff the compensation for damages (the defendant is liable to the plaintiff as long as the plaintiff was able to resist by claiming a third party in good faith in the lawsuit claiming the cancellation of the registration of transfer of ownership by Kim 00, but he did not exercise such right, he cannot be held liable to the deceased 00's heir, and therefore, the above inheritor cannot be held liable to compensate for damages against the plaintiff because he did not have the right to claim damages against the defendant. Thus, the plaintiff's assertion is without merit.

However, the seller bears the duty to transfer the ownership to the buyer and if the seller already transferred the registration of ownership to the buyer in the future as in this case, the seller is obliged to continue the registration without cancelling the registration. The purport of Article 110(3) of the Civil Act is to protect the third party in good faith or the transaction safety even if the contract is canceled by duress is to protect the third party in good faith. The plaintiff's assertion that the third party in good faith should not preserve the registration of ownership transfer or cancel the registration and the seller's warranty liability should be borne by the plaintiff. Thus, the defendant's argument that the plaintiff should bear damages to the buyer is without merit.

Furthermore, the facts that the Si's real estate of this case was equivalent to KRW 109,060,000 at the time of September 23, 2003 (the date of deposit of land compensation in Chuncheon City) due to the settlement date of the judgment of this case between the defendant and his heir as to the amount of damages, are as seen above, and thereafter, it is ratified that the market price as of August 16, 2004, which is the date of the conclusion of the judgment of this case, is equal to or higher than this.

Therefore, the defendant is obligated to pay to the plaintiff the above money and damages for delay which the plaintiff is seeking.

3. Conclusion

Therefore, the defendant is obligated to pay to the plaintiff the amount of KRW 109,060,00 and damages for delay at each rate of 5% per annum under the Civil Act from March 8, 2005 (the date the judgment of the court below No. 1-C.) to May 9, 2005, the delivery date of a copy of the complaint of this case from March 8, 2005 (the date the judgment of the court below No. 1-C.) and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Thus, the plaintiff's claim of this case is justified, and it is so decided as per the text.

Yellow-gu (Presiding Judge)

Kim Jong-soo

Kim Jin-ok