In calculating the profit of use of the object to be returned by the buyer due to the cancellation of a sales contract, whether the contributory portion and operating profit of the cash capital invested by the buyer should be deducted (affirmative with qualification)

In calculating the profit from the use of an object to be returned to the purchaser due to the cancellation of a sales contract, the net income acquired by the purchaser by using the object includes not only the profit from the use of the object but also the contribution of cash and capital invested by the purchaser, so it cannot be calculated by simply deducting the amount equivalent to cash and capital from the purchaser's net income without considering the input ratio of cash and it can be viewed that so-called operating profit from the purchaser's efforts such as the completion of the buyer's business, etc. is included in social norms, even if the buyer's act does not involve the buyer's act, such operating profit should be deducted within the scope of the profit that the buyer should return, unless it is within

Article 548 of the Civil Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Counterclaim Defendant) (Attorney Park Jong-soo, Counsel for the plaintiff-appellant)

Defendant-Counterclaim (Law Firm Cheongwon, Attorneys Yang Jae-ho et al., Counsel for the plaintiff-appellant)

Cheongju District Court Decision 2004Na2824, 2005Na2869 decided April 11, 2006

The judgment of the court below is reversed, and the case is remanded to Cheongju District Court Panel Division.

We examine the grounds of appeal.

1. The judgment of the court below

In full view of the admitted evidence, the court below acknowledged the following facts: (a) on October 20, 200, the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) purchased the instant automobile from the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) to a State-Owned Enterprise Corporation with the Defendant’s purchase price of KRW 23 million, and repaired and operated the part damaged by the instant automobile; and (b) at the time of the said sale, provisional attachment was established for KRW 140 million with respect to the instant automobile as the obligee at the time of the said sale, which was KRW 10 million with the treatment Automobile Sales Corporation as the obligee; (c) on the ground that the instant automobile was seized upon the application for compulsory sale by car company around October 200 and sold to others; and (d) on the grounds that the instant sales contract was lawfully rescinded by the Plaintiff’s declaration of intent of rescission, and thus, (e) the Defendant had the obligation to return the Plaintiff’s purchase price of KRW 23 million to the Plaintiff for a set-off of KRW 28 million,000,00.

2. Judgment of the court below

In light of the purport of the law that adds legal interest to the amount of return of the seller when the contracting party bears the duty of restitution due to the termination of the contract, if the buyer uses the subject matter, he shall return the profits from such use to the other party (see Supreme Court Decisions 74Da1383, 1384, March 23, 1976; 97Da30066, Feb. 25, 2000, etc.).

According to the records, in this case, the plaintiff filed a claim against the defendant for compensation for business losses, asserting that he would have earned net income of KRW 2 million per month after operating the instant vehicle in addition to the refund of the purchase price. The court below held that the plaintiff was a person who caused the profit of the instant vehicle to be 2,00,000 won per month on the ground of the plaintiff's claim. Meanwhile, as acknowledged by the court below, the plaintiff purchased the instant vehicle from the defendant with the amount of KRW 23 million per month and repaired and operated the damaged part of the instant vehicle with KRW 10,000,000,000 per month. According to these facts, the above net income of the plaintiff's assertion includes not only the profit of the instant vehicle itself, but also the share of cash capital equivalent to KRW 1,00,000 per month. Thus, the court below calculated the profit of the instant vehicle in the manner of deducting the amount of cash from the above net income of KRW 50,000 per month without considering the ratio of cash input revenues to the plaintiff's 10.

Nevertheless, the court below dismissed the plaintiff's claim on the ground that the plaintiff's interest in the use of the automobile of this case was the cause of two million won per month, and it did not err in the misapprehension of the rules of evidence, the incomplete hearing, or the misapprehension of the legal principles as to the duty to restore the interest in use, which affected the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-dam (Presiding Justice)