The case holding that there was an error of misapprehending the legal principles on the reservation for payment in kind, thereby ordering the payment of damages due to the delay in delivery of immovables.

If the value of the real estate at the time of the promise for payment in substitutes exceeds the total sum of the principal of the obligation and the interest thereon, and the reservation for payment in substitutes cannot take effect, it may be claimed to pay damages equivalent to the rent due to the delay in delivery of the real estate under the premise

Article 607 of the Civil Act, Article 608 of the Civil Act

Plaintiff

Defendant

Seoul High Court Decision 71Na249 delivered on May 4, 1972

The part concerning the payment of damages among the original judgment is reversed, and the case is remanded to the Gwangju High Court.

The appeal on the remainder is dismissed.

As to the grounds of appeal Nos. 1 and 2 by Defendant Attorney:

In light of the evidence stated in the original judgment, the fact-finding on the theory of the original judgment is not acceptable, and the protocol of statement on the lawsuit to the prosecutor is not adopted by the original judgment and it cannot be readily concluded that there was an error in the process of its recognition. Therefore, the issue is ultimately nothing more than anything else to criticize the matters of the original judgment on the determination of the evidence and the fact-finding.

All arguments are groundless.

As to ground of appeal No. 3

The judgment of the court below is without merit that the registration of this case was not made in the plaintiff's future. However, in this case where the defendant did not repay the borrowed object, the claim for the registration of this case cannot be excluded pursuant to Article 607 and Article 608 of the Civil Code. Furthermore, the plaintiff is deemed to exercise the right to complete the contract for the registration of this case as the principal suit. Thus, since the defendant is obliged to pay damages equivalent to the rent from the date of this case to the completion of the delivery of the land.

However, if the value of the real estate at the time of the promise for payment in kind exceeds the aggregate of the principal of the debt and interest thereof as the head of the defendant, the reservation for payment in kind cannot take effect under the application of Article 608 of the Civil Act, and the registration of ownership transfer under the name of the plaintiff is effective only to the extent that the principal and interest (including delay damages) is secured only to the extent that the obligation is secured. Thus, the defendant bears the obligation to the plaintiff to pay the principal and interest (including delay damages), barring any special circumstance, the plaintiff cannot claim damages from the party on the premise that the delivery of the real estate was delayed on the premise that the plaintiff acquired the ownership of the object of the promise for payment in kind, and barring any special circumstance, even though the court below did not examine whether the value at the time of the promise for payment in kind exceeds the aggregate of the principal and interest on the real estate at the time of the above promise for payment in kind, and without examining whether the value at the time of the promise for payment in kind exceeds the aggregate of the principal and interest on the real estate, it is erroneous or incomplete.

Therefore, pursuant to Articles 400, 406, 395, and 384 of the Civil Procedure Act, a decision is made as per Disposition with the assent of all participating judges.

The judges of the Supreme Court (Presiding Judge) shall have jurisdiction over the red net leaves