수분양자의 지위가 양도된 경우 및 분양계약이 해제된 경우 아파트 허위･과장광고로 인한 표시광고법상 손해배상책임- 대법원 2015. 7. 23. 선고 2012다15336 판결 -

Abstract

The Pre-sale advertising of apartment is sending to unspecified people. The rights and obligations of the contract parties can be changed, whether the contents of the advertisement can be included on the apartment sales contract or not. The Supreme Court decided that the Pre-sale advertising of apartment is not included with the apartment sale contracts, if it is not specific about the deal. Therefore, even if the Pre-sale apartment advertising is applicable to the false or exaggerated advertisements, the buyer can not rescind the apartment sales contract due to the sellers’ non-performance or cancel it due to fraud or error. But, in exceptional cases, even if the Pre-sale apartment advertising is not included with the apartment sales contract, the buyer can claim damages for the false or exaggerated advertisements according to the Act on fair Indication and Advertisement or liability for tort according to the Civil Code. To the contrary of this, the Supreme Court decided: the case when the buyer transfers the ownership of a lot to a third party, the claim of damages due to the false or exaggerated advertisements according to the Act on fair Indication and advertisement can not be transferred to a third party without a process of the cession of an obligation. Also, when the apartment sales contract is cancelled, the buyer can no longer claim damages, because it becomes extinct retroactively. But this decisions of the above mentioned the Supreme Court is needed to reconsider because of the contradictory to the principles of takeover contract and rescission of contract.