[Plaintiff, Appellee] ○○ Marine Development Co., Ltd.
[Plaintiff's Successor Intervenor, Appellee] △△ Industrial Development Co., Ltd. and 3 others (Attorneys Kim Da-jeong and 1 other, Counsel for the Plaintiff's Successor Intervenors)
[Defendant, Appellant] □□ Construction Co., Ltd. (Law Firm Samyang, Attorneys Roh Hong-su and 3 others, Counsel for the Defendant)
[Judgment Below] Busan High Court (Changwon) Judgment 2020Na10223, decided October 15, 2020
[Order]
The part of the judgment below concerning the Defendant's loss and the part concerning the Plaintiff are reversed, and this part of the case is remanded to the Busan High Court.
[Reasoning]
The grounds of appeal are examined.
1. Determination on whether the Plaintiff lost standing as a party (Grounds of Appeal Nos. 1 and 2)
Even where a collection order (추심명령) has been issued with respect to the obligor's claim against the third-party obligor, the obligor does not lose standing to bring a performance action against the third-party obligor concerning the attached claim (see Supreme Court en banc Decision 2021Da252977, decided October 23, 2025).
Accordingly, even if, as the Defendant argues, other creditors of the Plaintiff obtained a claim attachment and collection order regarding the damages claim at issue in this case, prior to Plaintiff's Successor Intervenor 2 and Plaintiff's Successor Intervenor 4, and such order was served on the Defendant as the third-party obligor, it cannot be deemed that the Plaintiff lost standing to bring a performance action with respect to the portion of delay damages accrued between the time such attachment and collection order was served and the time the attachment and collection order obtained by Plaintiff's Successor Intervenor 2 and Plaintiff's Successor Intervenor 4 was served. Furthermore, even assuming, as the Defendant argues, that the effect of the attachment and collection order obtained by Plaintiff's Successor Intervenor 2 and Plaintiff's Successor Intervenor 4 extends to the portion of delay damages that had already accrued by the time such order was served on the Defendant, this does not mean that the Plaintiff lost standing to bring a performance action with respect to that portion of delay damages. Therefore, this ground of appeal by the Defendant concerning the Plaintiff's alleged loss of standing cannot be accepted.
2. As to the Third Ground of Appeal
The court below, for the reasons stated in its judgment, recognized the salvage costs and towing costs of the vessel as damages separate from the hull damage amount. Examining the reasoning of the judgment below in light of the relevant legal principles and the record, this determination by the court below is justified, and there is no error therein, such as a misapprehension of the legal principles affecting the judgment, as alleged in the grounds of appeal.
3. As to the Fourth Ground of Appeal and the Portion of the Sixth Ground of Appeal Concerning the Allegedly Excessive Cost of Salvaging and Towing the Barge at Issue from the Accident Site to Incheon Port
These grounds of appeal are, in essence, merely challenges to the court below's fact-finding and selection of evidence, and thus are difficult to regard as legitimate grounds of appeal. Furthermore, there is no error in the court below's fact-finding and determination, such as a violation of logic and empirical rules, exceeding the limits of free evaluation of evidence, or a failure to exhaust the necessary deliberation, that affected the judgment.
4. As to the Fifth Ground of Appeal
The court below, for the reasons stated in its judgment, determined that the business loss incurred by the Plaintiff until it obtained and used a new vessel as a result of the damage to the barge at issue was KRW 45,373,500. Examining the reasoning of the judgment below in light of the relevant legal principles and the record, this determination is justified, and there is no error therein, such as a violation of the principle of party disposition and the principle of party presentation affecting the judgment, as alleged in the grounds of appeal.
5. As to the Portion of the Sixth Ground of Appeal Concerning Whether the Towing Cost from Incheon Port to Gunsan Port (hereinafter the "Towing Cost at Issue") Is Included Within the Scope of Damages
A. Determination of the Court Below
The court below determined that, since the Plaintiff and the Defendant designated Gunsan Port as the place for return of the barge at issue in Article 2 of the "Vessel Lease Agreement" attached as Exhibit 2 to the judgment below (hereinafter this clause is referred to as the "Clause at Issue"), it is difficult to conclude that the effect of the Clause at Issue was extinguished even though the barge at issue had become economically unrepairable, and therefore the Towing Cost at Issue of KRW 53,318,000 is also included within the scope of damages that the Defendant must pay to the Plaintiff.
B. However, the above determination of the court below cannot be upheld as it stands, for the following reasons.
1) A claim for damages arising from a tort or non-performance of an obligation arises at the time actual damage occurs, and whether actual damage has occurred at that time must be determined objectively and reasonably in light of common social norms (see Supreme Court Decision 97Da28568, decided April 24, 1998; Supreme Court Decision 2017Da56455, decided July 9, 2020, etc.). Moreover, in a claim for damages arising from a tort or non-performance of an obligation, the fact of the occurrence of such damage must be proven by the victim or the obligee (see Supreme Court Decision 2017Da215070, decided June 19, 2017; the above Supreme Court Decision 2017Da56455, etc.).
2) If the barge at issue is to be evaluated as economically unrepairable, as determined by the court below, then, absent special circumstances, the remains of the barge at issue would have utility only for the purpose of obtaining proceeds from its disposal. In that case, absent special circumstances such that disposal of the remains of the barge at issue must necessarily take place at the place designated for return under the Clause at Issue, or that it would be socially acceptable to honor the Plaintiff's wish to have the remains of the barge at issue towed to Gunsan Port, it is difficult to conclude that the Clause at Issue continues to apply as it is even where the barge at issue has become economically unrepairable. However, no assertion or proof of such special circumstances is found in this case.
3) Furthermore, the mere fact that the Clause at Issue designated Gunsan Port as the place scheduled for the return of the barge at issue is insufficient to conclude that damage in the form of the expenditure of towing costs for towing the barge at issue to Gunsan Port has actually and concretely occurred to the Plaintiff. In this case, there is no material showing that the barge at issue was actually towed to Gunsan Port, or that the Plaintiff had established a concrete plan to tow the barge at issue to Gunsan Port, as of the close of oral argument before the court below.
4) Accordingly, the court below should have examined whether there existed special circumstances requiring the remains of the barge at issue to be towed to Gunsan Port even where the barge at issue had become economically unrepairable, and further, whether such damage had actually and definitively occurred to the Plaintiff.
C. Nevertheless, without examining the above circumstances, the court below determined that the Towing Cost at Issue is included within the scope of damages to be borne by the Defendant. This judgment of the court below contains an error affecting the judgment, in that it misapprehended the legal principles concerning the scope of damages and failed to exhaust the necessary deliberation. The ground of appeal pointing this out has merit.
6. As to the Seventh Ground of Appeal
The court below, considering the following circumstances comprehensively: that the Defendant leased the barge at issue from the Plaintiff in order to perform the work of installing structures at the construction site at issue, and separately leased the towing vessel at issue from the co-defendant below for the operation thereof; that in light of the contents of the lease agreement for the barge at issue and its voyage schedule, the period during which the barge at issue would be used for its original purpose is expected to be an extremely small portion of the contractual period of use; that in light of the scale of the construction at issue and the value of the barge at issue, the rental fee of KRW 20,000,000 for the barge at issue is too small an amount to be regarded as consideration for the Plaintiff bearing all risks incident to the voyage for the construction at issue; that the Defendant's site manager, Non-Party, requested the departure of the tug-and-barge convoy at issue, resulting in its departure; and that the Plaintiff's placing its employees aboard the barge at issue appears to have been not for the purpose of entrusting the entire management of the navigation of the barge at issue, but simply for managing the vessel while moored and supporting equipment management and work at the worksite—rejected the Defendant's argument that the lease agreement for the barge at issue was a time charter agreement, and determined instead that it was a demise charter with crew (선원부 선체용선계약).
Examining the reasoning of the judgment below in light of the relevant legal principles and the record, there is no error in the above determination of the court below, such as a misapprehension of the legal principles concerning vessel use contracts, as alleged in the grounds of appeal, that affected the judgment.
7. Scope of Reversal
A. The part of the judgment below determining that the towing cost from Incheon Port to Gunsan Port is included within the scope of damages to be borne by the Defendant contains the ground for reversal noted above. However, as a result of the deliberation and determination by the court below after remand in accordance with the purport of this reversal, the total amount of damages may change, and in such a case, it is necessary to newly calculate each amount to be awarded according to the relationship of priority among the Plaintiff and the Plaintiff's Successor Intervenors.
B. Where, while a lawsuit is pending before a court, a third party joins the lawsuit pursuant to Article 81 of the Civil Procedure Act (민사소송법), asserting succession to all or part of the right that is the object of the lawsuit, and the plaintiff, without disputing whether the intervenor has succeeded to the right, remains in the lawsuit without withdrawing from it or dismissing the action, then, because the claims of the plaintiff and the successor intervenor overlap due to the succession, the legal principles concerning necessary co-litigation apply (see Supreme Court en banc Decision 2012Da46170, decided October 23, 2019, etc.), and thus a single final judgment must be rendered as to all co-litigants when rendering a judgment on the merits (see Supreme Court Decision 2011Da1323, decided June 24, 2011, etc.). Under these legal principles, inasmuch as the judgment below contains grounds for reversal due to the court below's misapprehension of the legal principles concerning the scope of damages and failure to exhaust the necessary deliberation, as noted above, the portions of the judgment awarding the claims of the Plaintiff's Successor Intervenors, who joined this lawsuit on the ground that they succeeded to part of the Plaintiff's claim for damages against the Defendant, and the overlapping portions of the Plaintiff's claim, must also all be reversed.
C. The Court makes the following determination ex officio. The court below dismissed the portion of the Plaintiff's action against the Defendant exceeding the claims listed in the "Legitimate Portion of Plaintiff's Claim" in Exhibit 1 attached to the judgment below, on the ground that the Plaintiff lost standing as a party with respect to that portion as a result of the collection orders obtained by Plaintiff's Successor Intervenor 2 and Plaintiff's Successor Intervenor 4. However, even where a collection order has been issued with respect to the obligor's claim against the third-party obligor, the obligor does not lose standing to bring a performance action against the third-party obligor concerning the attached claim (see the above Supreme Court en banc Decision 2021Da252977). Therefore, this part of the judgment below can no longer be upheld.
D. In conclusion, the part of the judgment below concerning the Defendant's loss and the part concerning the Plaintiff must be reversed.
8. Conclusion
Without determining the remaining grounds of appeal, the part of the judgment below concerning the Defendant's loss and the part concerning the Plaintiff are reversed, and this part of the case is remanded to the court below for further deliberation and determination. This judgment is rendered in accordance with the order, upon the unanimous opinion of the Justices participating in the decision.
Justice Lee Suk-yeon (Presiding Justice), Lee Heung-gu, Oh Seok-jun (Justice in Charge), Roh Kyung-pil