제3자에 의한 채권침해와 권리행사의 한계 - 대법원 2021. 6. 30. 선고 2016다10827 판결에 대한 평석

초록

On June 30, 2021, the Korean Supreme Court rendered an important decision (Supreme Court, 2016Da10827) on economic loss incurred to a person as a result of infringement by a third party of performance of an obligation by an obligor. The underlying facts of the decision are as follows: the purchaser entered into a pre-sale agreement of a unit in a commercial building with a real estate developer as a seller. The contractor, who entered into a construction agreement with a real estate developer, has the right to consent to withdrawal of funds from the management account in relation to pre-sale real estate project but refused to consent to the request by the real estate developer for withdrawal of funds required for restitution of the purchase price to a purchaser due to duly terminated the pre-sale agreement. Then the contractor continuously withdrew the funds from the management account to reimburse his construction expense and consequently, the balance of the management account went insufficient to restitute the purchase price to the purchaser. The Korean Supreme Court held that the refusal to consent and withdrawal of funds from the management account to reimburse his construction expense by the contractor constituted an infringement by a third party of the performance of obligation owed by the developer as a seller to the purchaser since it violated the fairness and soundness of the transaction in pre-sale real estate development market and the economic system. This Supreme Court decision is meaningful in holding that the contractor is liable for the economic loss incurred to the purchaser as a result of infringement by the third party (the contractor) of the performance of an obligation by the real estate developer as an obligor.

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