[1] Whether aiding and abetting by negligence in a joint tort is possible (affirmative) and the meaning of negligence

[2] The meaning of "false or exaggerated advertisement" under Article 3 (1) 1 of the former Act on Fair Labeling and Advertising and the criteria for its determination

[3] In a claim for damages arising from a tort, where it is deemed that property damage was incurred, but it is difficult to prove the specific amount of damage in light of the nature of the case, whether the court may determine the amount of damage in proximate causal relation by comprehensively taking into account indirect facts (affirmative)

[1] Articles 750 and 760 of the Civil Act / [2] Article 3(1)1 of the former Act on Fair Labeling and Advertising (Amended by Act No. 11050, Sep. 15, 201); Article 3(1) of the former Enforcement Decree of the Act on Fair Labeling and Advertising (Amended by Presidential Decree No. 23230, Oct. 17, 201); Article 3(3) of the former Enforcement Decree of the Act on Fair Labeling and Advertising / [3] Articles 393 and 763 of the Civil Act; Article 202 of the Civil Procedure Act

[1] Supreme Court Decision 99Da41749 Decided April 11, 200 (Gong2000Sang, 1172), Supreme Court Decision 2009Da1313 Decided April 23, 2009 (Gong2009Sang, 755) Supreme Court Decision 2012Da15060, 15077 Decided June 14, 2012 / [2] Supreme Court Decision 2007Da59066 Decided July 22, 2010 (Gong2010Ha, 1627), Supreme Court Decision 2009Da67979, 67986 Decided August 26, 2010 / [3] Supreme Court Decision 2009Da679794 decided June 24, 2004; Supreme Court Decision 2002Da6204679 decided June 26, 2004

Plaintiff 1 and nine others

Plaintiff 3 and six others

Plaintiff 5 and 14 others (Law Firm Lee & Lee, Attorneys Yellow- Line et al., Counsel for the plaintiff-appellant)

Czeyang Market Corporation

Seoul High Court Decision 2001Na11488 delivered on August 1, 201

Seoul High Court Decision 2010Na36867, 36874, 368881 decided June 30, 201

Defendant Counterclaim Co., Ltd. (Counterclaim Defendant 6, 17, 19, 27, and 28) and the appeal against Plaintiff 3, 4, 12, 13, 22, and 32 among the judgment of the first instance as to the winning portion of the judgment. The remainder of the appeal by the Plaintiffs 3, 4, 8, 12, 13, 22, 32, and 12, 5, 6, 7, 9, 10, 11, 14, 15, 16, 18, 20, 23, 26, 28, 29, 24, 27, 29, 30, 14, 15, 27, 25, 16, 27, 25, 17, 27, 25, 17, 25, 17, 27, and 31.

The grounds of appeal are examined [to the extent of supplement in case of supplemental appellate briefs not timely filed by Plaintiffs 17, 19, and 25].

1. As to the appeal by the plaintiffs (excluding plaintiffs 17, 19, 25)

A. As to the grounds of appeal by Plaintiffs 3, 4, 12, 13, 22, 32, and Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) 5, 10, 11, 14, 15, 16, 18, 20, 21, 23, 24, 26, 29, and 30 (hereinafter “Plaintiffs located in the instant case”)

1) Claim for false or exaggerated advertisement about exclusive use area display

Based on its stated reasoning, the lower court determined as follows: (a) the Defendant (Counterclaim Plaintiff); (b) calculated the exclusive use area based on the size of the centerline according to the interpretation of the Gwangjin-gu Office, the enforcement agency; and (c) indicated the exclusive use area in the public announcement of invitation of residents or the housing supply contract as the exclusive use area; and (d) did not constitute the act of false and exaggerated labeling or advertising by Article 3(1)1 of the former Act on Fair Labeling and Advertising (amended by Act No. 11050, Sept. 15, 201; hereinafter “former Act”).

Examining the reasoning of the judgment below in light of the relevant statutes and records, we affirm the above determination by the court below. Contrary to the allegations in the grounds of appeal, there were no errors in the misapprehension of legal principles as to unfair labeling or advertising by falsity or director as prescribed by the former Act, or exclusive use area as prescribed by the Housing

2) Claim on the amount of damages

The argument in the grounds of appeal on this part is based on the premise that the exclusive area is calculated based on the size of the center line and the exclusive area is indicated in the public announcement of invitation of residents constitutes false or exaggerated advertisements as prescribed by the former Act. As seen earlier, the exclusive area indication in this case cannot be deemed to constitute false or exaggerated advertisements as prescribed by the former Act. Therefore, the ground of appeal on this part is without merit.

B. As to the grounds of appeal by Plaintiffs 1, 2, 7, 9, and 31

1) Claim for deception

For the reasons indicated in its holding, the lower court determined that the above advertisement did not constitute a fraudulent act of deception, which was falsely announced in a way that would not be acceptable in light of the general commercial practice and the good faith principle, considering the following circumstances: (a) the advertisement on the installation of the instant underground ice and the indication of the supplied area constitutes a false or exaggerated advertisement stipulated in the former Act; (b) the degree of falsity or exaggeration; (c) the process of implementation of the plan for installation of underground ice; and (d) the fact that the supplied area was excessively displayed; and (e) there was no change in the fact that the supplied housing has the same structure, use, location, and area

In light of the relevant legal principles and records, the above judgment of the court below is just and acceptable, and there is no error of law such as misunderstanding of legal principles or incomplete hearing as alleged in the grounds of appeal.

2) The plaintiff (Counterclaim defendant) 31's joint liability for the cancellation of the contract

The court below held that Defendant 2 Industries, not the party to the sales contract, did not have a duty to return the sales price to the above Plaintiff even if the sales contract was cancelled for the above Plaintiff. In light of the relevant legal principles and records, the above judgment of the court below is just, and there is no error of law such as misunderstanding of legal principles as to the duty to restore the contract cancellation,

C. As to Plaintiff 8’s ground of appeal

According to the reasoning of the judgment below, the court below, after compiling the adopted evidence, found facts as stated in its reasoning, dismissed the plaintiff 8's claim for damages of this case on the ground that the plaintiff 8's claim for damages of this case should be deemed to have been transferred to non-party 1 and 2 by transferring the status of the

In light of the records, the fact-finding and judgment of the court below are just, and there is no violation of law of logic and experience and free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

D. As to the grounds of appeal by Plaintiffs 6, 27, and 28

1) Claim for cancellation of a contract

The court below rejected the plaintiffs' assertion that the sales contract was cancelled for the reasons that the above plaintiffs can cancel the sales contract on the grounds that there is no assertion or proof as to the grounds that the above plaintiffs can cancel the sales contract. In light of the records, the above judgment of the court below is just, and there is no violation of the principle of pleading or the duty of explanation as alleged in the grounds of appeal.

2) Claim concerning damages

According to the records, the above plaintiffs filed a claim for damages based on false or exaggerated advertising with the preliminary claim at the first instance court, and subsequently changed the conjunctive claim from May 23, 201 to the claim for restitution due to cancellation of the contract in the claim for damages to the claim for restitution due to the cancellation of the contract, from May 23, 2011.

Therefore, the previous claim for damages was withdrawn by changing the conjunctive claim in exchange for the conjunctive claim. Therefore, the court below did not err in violating the duty of explanation, etc. as otherwise alleged in the ground of appeal in failing to determine the claim for damages of the above plaintiffs.

2. As to the defendants' appeal

A. As to the appeal by the defendant Yangyang market

1) As to the appeal against the plaintiff 6, 17, 19, 27, and 28

An appeal is a claim for revocation or alteration of a judgment disadvantageous to himself/herself in favor of himself/herself, and the appeal against the original judgment in favor of him/her shall not be permitted as there is no benefit of filing an appeal (see Supreme Court Decision 97Da22676 delivered on December 26, 197).

According to the records, it is clear that the court below dismissed all of the plaintiffs' claims against the defendant Choyang market. Thus, the appeal filed by the defendant Choyang market against the above plaintiffs is unlawful as there is no benefit of appeal.

2) As to the appeal regarding the winning part of the judgment of the first instance as to the plaintiff 3, 4, 12, 13, 22, and 32

According to the records, the above plaintiffs appealed against the judgment of the court of first instance that partially admitted the above plaintiffs' claims, but the defendant Yyang market did not appeal or incidental appeal, and the court below found part of the appeal by the above plaintiffs. The defendant Yyang market that did not appeal against the judgment of first instance cannot appeal against the winning part of the judgment of first instance (see, e.g., Supreme Court Decisions 2001Da63131, Feb. 5, 2002; 2010Du14534, Nov. 11, 2010); and the appeal against this part of the defendant Yyang market is unlawful.

3) As to the grounds of appeal against the plaintiff 1, 2, 7, 9, 25, and 31 (claiming the amount of settlement)

According to the records, from the fifth day of pleading of the court below, the defendant Yyang market cancelled the sales contract for the above plaintiffs on January 10, 201 with the statement of the preparatory brief as of January 10, 201, and submitted a copy of the complaint by disclosing that the plaintiff Yyang market filed a separate lawsuit as to the claim for indemnity against the above plaintiffs. As long as the defendant Yyang market filed a separate lawsuit as to the claim for indemnity against the above plaintiffs, it is difficult to view that the court below has a duty to explain whether to additionally set-off against the defendant Yyang market, and there is no violation of law such as omission of judgment or violation of the duty of explanation as alleged in the ground for

B. As to the ground of appeal against the plaintiffs living in the instant case by the defendant two-way Heavy Industries (the ground of appeal as to joint tort liability)

Joint tort refers to all direct and indirect acts that facilitate tort, and the interpretation of the Civil Act, unlike the Criminal Act, which recognizes negligence as a matter of principle for the purpose of compensating for damages, is able to assist by negligence. In such cases, negligence refers to a violation of this duty on the premise that the duty of care not to assist the tort is not provided (see, e.g., Supreme Court Decisions 2009Da1313, Apr. 23, 2009; 2012Da15060, 15077, Jun. 14, 2012).

The lower court determined that Defendant 2 Industries could be recognized as aiding and abetting tort in Defendant 2’s solar market by encouraging the sale advertisement to indicate its trade name, etc., although it was sufficiently aware or could have sufficiently known the false and exaggerated indication or advertisement about the underground arche and the supplied area of the instant underground arche market in the Defendant 3, or by neglecting it in breach of its duty of care as a contractor.

Examining the reasoning of the judgment below in light of the above legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules,

C. As to the Defendants’ grounds of appeal against the Plaintiffs located in the instant case

1) Claim concerning false or exaggerated advertising of underground arching cases

According to Article 3(1)1 of the former Act and Article 3(1)1 of the Enforcement Decree of the same Act, false or exaggerated advertisements refer to advertisements that are contrary to facts or are likely to deceive or mislead consumers, and that might undermine fair trade order. Whether advertisements are likely to deceive or mislead consumers should be objectively determined on the basis of the overall and extreme increase of ordinary consumers who receive the pertinent advertisement (see, e.g., Supreme Court Decisions 2007Da59066, Jul. 22, 2010; 2009Da67979, 67986, Aug. 26, 2010).

After recognizing the facts in the judgment below, the court below determined that the act of advertising as if it was scheduled to be installed within a relatively short period of time, on August 29, 2005, on the ground that the general consumers with common caution received the advertisement constitutes an act of advertising likely to mislead consumers, and thus likely to mislead them, and that the fair trade order is likely to be impeded, since it constitutes an act of making an advertisement likely to mislead them by excessively lowering the possibility of its realization based on the overall and extreme increase, and thus it is likely that fair trade order would be impeded, as the construction plan of the instant ground was excluded from the solar complex building including the instant main complex building, around September 2005, which was at the time of the commencement of sale of the instant main complex building.

In light of the above legal principles and records, the above judgment of the court below is just and acceptable, and contrary to the allegations in the grounds of appeal, there is no violation of the principle of free evaluation of evidence in violation of logical and empirical rules.

2) Claim on the amount of damages

In a lawsuit seeking compensation for damages due to a tort, where it is deemed that the occurrence of property damage is recognized, but it is difficult to prove the specific amount of damage in light of the nature of the case, the court may determine the amount of damage in proximate causal relation by taking into account all the indirect facts such as the relationship between the parties, the background leading up to the tort and its property damage, the nature of the damage, and all the circumstances after the damage was incurred (see, e.g., Supreme Court Decisions 2002Da6951, 6968, Jun. 24, 2004; 2004Da60447, Nov. 23, 2006).

In full view of the circumstances stated in its reasoning, the lower court recognized the amount equivalent to 5% of the sales price as the damages amount of the Plaintiffs’ damages based on false and exaggerated advertisements.

In light of the above legal principles and records, the above determination by the court below is just, and contrary to the allegations in the grounds of appeal, there were no errors of misapprehending the legal principles or failing to exhaust all necessary deliberations.

3. Conclusion

Therefore, among the judgment of the court of first instance, the appeal against the plaintiffs 6, 17, 19, 27, and 28 against the plaintiffs 3, 4, 12, 13, 22, and 32 against the judgment of the court of first instance. The remainder of the appeal against the plaintiffs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22, 23, 26, 27, 29, 30, 31, 32, 32, 3, 4, 12, 13, 222, and 32, 25, 27, 36, 14, 15, 216, 27, 214, 27, and 25 of the above part shall be dismissed.

Justices Jo Hee-de (Presiding Justice)