(영문) 대법원 2015.5.28.선고 2015다5736 판결

1. As to the grounds of appeal on the grounds of revocation of a contract, the court shall determine whether the assertion of facts is true in accordance with logical and empirical rules on the basis of social justice and equity by free judgment, taking into account the overall purport of pleadings and the result of examination of evidence (Article 202 of the Universal Litigation Act). The fact that the judgment of the court below did not go beyond the bounds of the principle of free evaluation of evidence, and the facts duly confirmed are binding on the court of final appeal (Article 432 of the same Act). The court below, on the grounds as indicated in its reasoning, determined that the Defendant was obliged to divide the instant land into the Plaintiff and transfer the registration of transfer of the ownership on the divided land to the Plaintiff

The part of the ground of appeal disputing the lower court’s fact-finding is merely an error in the selection of evidence and the determination of the value of evidence belonging to the free evaluation of the lower court. In addition, examining the reasoning of the lower judgment in light of the aforementioned legal doctrine and the evidence duly admitted,

Although there are some inappropriate parts in the reasoning, the lower court did not err in its judgment by misapprehending the legal doctrine regarding the refusal of performance, which is the grounds for revocation of contract, or by exceeding the bounds of the principle of free evaluation of evidence, contrary to what is alleged in the grounds of appeal.

2. As to the ground of appeal on the effect of rescission of contract and damages for delay

A. Article 548(2) of the Civil Act provides that interest shall be added from the date of receipt until the payment is made for the performance of the duty to restore the property upon rescission of the contract. The repayment of interest falls within the scope of the duty to restore the property, and does not constitute damages arising from delay in the performance of the duty to return the property. Meanwhile, Article 3(1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (hereinafter “the Act”) provides that where a judgment ordering the performance of all or part of the monetary obligation is rendered, the interest rate under Article 3(1) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings (hereinafter “the Act”) is not applicable to the statutory interest rate that serves as the basis for calculating the amount of damages arising from the nonperformance of the monetary obligation. However, where a lawsuit seeking the return of money due to the performance of the duty to restore the property is filed, the obligor shall be liable for delay due to the delay in the performance of the duty to return the property from the date following the delivery of the complaint or other equivalent document (see, e.g., Supreme Court Decision 72003Da293.

In addition, Article 3(2) of the Litigation Promotion Act provides that "where it is deemed reasonable for an obligor to resist the existence or scope of the obligation to perform to the obligor before the judgment of fact-finding that declares the obligation to perform the obligation to the obligor is rendered, Paragraph (1) shall not apply to the reasonable extent." Article 3(1) of the Litigation Promotion Act provides for special cases concerning statutory interest rates that serve as the basis for calculating the amount of damages arising from the nonperformance of the obligation to perform the obligation, the application of Paragraph (2) may be excluded." "Where it is deemed reasonable for an obligor to resist the existence or scope of the obligation to perform the obligation" refers to the case where the obligor's assertion is deemed reasonable and reasonable, as to the existence or scope of the obligation to perform the obligation. Whether it is reasonable for the obligor to do so is a matter of fact-finding and evaluation by the court concerning the relevant case (see, e.g., Supreme Court en banc Decision 86Meu1876, May 26, 1987; Supreme Court Decision 2013Da30566, Sept. 12, 2, 2013).

B. According to the reasoning of the judgment below and the records, the plaintiff claimed damages against the defendant and co-defendant B of the court of first instance on October 31, 2013, and the plaintiff claimed restitution from the defendant and co-defendant B due to delay of performance or impossibility of performance, and all of the claims were dismissed. ② The plaintiff at the court of first instance changed the claim for damages due to tort from the plaintiff's primary claim, and added the claim for restitution due to cancellation of contract due to delay of performance, to the conjunctive claim. ③ The court below dismissed the plaintiff's primary claim. However, the court below rejected the plaintiff's primary claim, but it found that the plaintiff's written statement dated October 31, 2013 reached the defendant on November 5, 2013, each of the sales contracts of this case was lawfully rescinded, and the plaintiff's claim for restitution from the court of first instance, which was 30% of the purchase price of this case, and the plaintiff's claim for restitution from the court of second instance, 30% of the purchase price of this case and the plaintiff's claim for restitution.

C. We examine the above facts in light of the legal principles as seen earlier.

(1) First of all, the lower court recognized that each of the instant sales contracts was rescinded by the Plaintiff’s declaration of intent to rescind the contract during the proceeding of the first instance trial, which was before the Defendant clearly expresses his intention to refuse performance at the lower court. In so doing, the lower court erred by misapprehending the legal doctrine on the inconsistency in its reasoning or the validity of rescission of the contract.

(2) In the instant case where, as the judgment of the court below, no evidence exists to deem that there exists an agreement on interest to be added to the money to be returned to the parties, even if each of the instant sales contracts was rescinded, the Defendant liable to restore the duty to the duty to the restitution shall be liable to return the interest at the civil or commercial interest rate from the date the Plaintiff seeks, in addition to the purchase price, after the date on which the purchase price of each of the instant sales contracts was received pursuant to Article 548(2) of the Civil Act. Furthermore, the interest rate stipulated in Article 3(1) of the Civil Procedure Promotion Act may apply to the damages for delay after the written documents, etc., including the intent to seek the performance of the duty to the duty to return together with the rescission made by the cause of the refusal of performance, are served on the Defendant, but if there is a valid ground for the Defendant’s dispute on whether the obligation to return exists or the scope of restitution, the said damages for delay

Therefore, the court below should have determined the interest rate applicable to the interest or delay damages to be paid by the defendant, based on the review and determination of the scope to which the interest rate under Article 3(1) of the Litigation Promotion Act applies, after clearly stipulating the intent of performance by the defendant, and examining whether and when the plaintiff expressed his intention of rescission properly. The court below should have determined the rate applicable to the interest or delay damages to be paid by the defendant.

In addition, the lower court, on the erroneous premise that the Defendant is liable for delay to the duty of restitution from the day after the delivery of the duplicate of the complaint, applied the interest rate under Article 3(1) of the Civil Procedure Promotion Act from the above day to the damages for delay in the duty of restitution. In so doing, the lower court erred by misapprehending the legal doctrine on the return of interest as a result of contract rescission, delay in the duty of restitution, and application of Article 3 of the Civil Procedure Promotion Act, thereby adversely affecting the conclusion of the judgment.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.