계약완성의무의 위반과 이행이익의 배상 - 대법원 1999. 7. 9. 선고 97다7943 판결 -

The Korean Supreme Court in its judgment of 9, July 1999(97Da7943)made the decision that the defendant is liable for paying damages to the plaintiff for his negative losses suffered by the defendant's breach of duty to complete their contract. The damages of negative losses, i.e.,assessment of damages in the price of land at the time of performance,had the nature of expectation damages, which are estimated based on losses of profits which the plaintiff would have realized if the contract of this case had have validity and the defendant had completed his contractual obligations. However the Korean Supreme Court classified defendant's act as a tortious act. So the Korean Supreme Court imposed to the defendant expectation damages based on torts. It can be explained by the theory of causation. If the defendant didn't commit a tort, the contract would become valid, and he had to perform his obligation. But this is logically different from the other decisions of Korean Supreme Court about unreasonable repudiation of contractual negotiations. In cases of unreasonable repudiation of contractual negotiations, Korean Supreme Court limited the damages by the extent of reliance interests. The reason of limitation is that “it cannot be said that the plaintiff obtained a legal status to claim entitled to an enforcement of contract and a measure of damages under the presumption that a contract had been formed”. On the other hand in cases of land transactions without permission, the Korean Supreme Court acknowledged duty to cooperate to obtain permission. If one party breaches this duty, he/she must pay expectation damages. These cases have something in common with sanctions to opportunistic behaviors before completion of contracts (breach of duty to complete a valid contract). But the degrees of sanctions are different. The Korean Supreme Court divides the cases into liability of expectation damages and one of reliance damages. This difference can be explained by the stages of negotiations. If the parties' declarations of intentions are not met, although the unreasonable repudiation of contractual negotiation constitutes torts, the tort-feasor shall be liable to make compensation for the reliance damages. But the parties' declarations of intentions are met (like this case and fluid invalidity case), the tort-feasor shall be liable to make compensation for the expectation damages.