[2] Whether the withdrawal of confession as to the authenticity of a documentary evidence should be treated together with the revocation of confession as to the principal facts (affirmative)

Since an appeal is seeking revocation or alteration of a judgment disadvantageous to himself/herself, the appeal against the judgment rendered in favor of him/her is not allowed as there is no object or interest to file an appeal (see Supreme Court Decision 9Da61378 delivered on June 14, 2002, etc.).

According to the records, the first instance court fully accepted the designated Nonparty 1 and Nonparty 2 (the first instance court and the Defendants C)’ claim for the performance of the assignment of claims, and the lower court dismissed all appeals filed by both Nonparty 1 and Nonparty 2.

The appeal on the appointed person 2 is unlawful as it does not have any object or interest to file an appeal against the judgment of winning the entire case.

2. Determination on the appeal by the plaintiff (appointed party, hereinafter "the plaintiff")

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

A. Whether Defendant 2’s confessions lawfully revoked with respect to the establishment of the authenticity of the evidence No. 4 (a written agreement, hereinafter “instant agreement”)

(1) As long as the confession in court does not consent from the other party, the confession may be revoked by means of proving the fact that the confession was in violation of the truth and that the confession was due to an error. Although confessions as to the authenticity of confessions are related to the facts supporting the confessions, unlike the revocation of confessions as to other indirect facts, the confessions must be treated equally with the revocation of confessions as to the principal facts. Thus, the parties who have led to confessions of confessions cannot freely withdraw the confessions (see Supreme Court Decisions 88Meu3083, Dec. 20, 198; 90Da8244, Jan. 11, 1991; 2002Da57584, Jan. 10, 2003, etc.).

(2) The lower court determined as follows.

As to the instant agreement, Defendant 2 recognized the authenticity on the third day of pleading of the first instance court, as indicated in the Book of Witness on August 12, 2011. However, in full view of the overall purport of pleadings as to the entries in the evidence No. 103-1 and the evidence No. 116, Defendant 1 merely affixed Defendant 2’s signature on behalf of Defendant 2 and affixed the seal of Defendant 2 on the instant agreement, and Defendant 2 was aware of the fact that the authenticity of the instant agreement was acknowledged as above. Accordingly, the establishment of the authenticity of the instant agreement is contrary to the truth and due to mistake, and Defendant 2 was legally revoked according to the intention of revocation at the first or fourth day of pleading of the lower court.

(3) According to the reasoning of the lower judgment and the record, the following facts are revealed.

(A) At the third date for pleading of the first instance trial, Defendant 2 admitted the instant agreement as “agravating the formation” as to the instant agreement.

(B) No. 103-1 of the evidence No. 103 is a suspect interrogation protocol of the plaintiff prepared by the prosecutor on October 4, 2012, and its major contents are that "the instant agreement was prepared on the job where the plaintiff, the non-party 1, and the defendants were located, and Defendant 1 obtained the permission of the defendant 2, and signed and sealed by the defendant 2."

(C) The evidence No. 116 was a notice of the reason for non-prosecution, and its main contents were as follows: “The Defendant, Nonparty 1, and Nonparty 2 filed a complaint with the Plaintiff for the forgery of private documents while forging the instant agreement, etc., but the prosecutor issued a disposition to the effect that he was guilty on August 13, 2013.”

(D) Around June 1994, Defendant 2 received a proposal from Defendant 1, stating that “When investing KRW 10 million in order to pay the purchase price of the instant real estate, the owner of the instant real estate may become the owner of the instant real estate and make profits from several times in the event that the future is being developed.” On June 27, 2006, the Defendants registered as co-ownership of 2/5 shares out of the instant real estate, and thereafter, Defendant 1 independently handled all loans and establishment of mortgage related to the instant real estate upon delegation by Defendant 2.

(E) On May 9, 2007, the Defendants: (a) prevented the Plaintiff’s mother Nonparty 3 and Nonparty 2 from establishing a mortgage on the share of the Defendants among the instant real property; (b) included Defendant 2 in addition to Defendant 1. This is consistent with the instant agreement and its content; and (c) acknowledged that Defendant 2 directly drafted the said agreement.

(F) On October 7, 2014, the Plaintiff was indicted on the charge of forging the instant agreement, etc., and was subsequently affirmed the judgment of innocence on the grounds that “The Defendants, Nonparty 1, and Nonparty 2’s statement to the effect that the instant agreement was forged, are not consistent or that it is difficult to believe in light of the content of the instant agreement and the details of use after preparation, etc.,” and the judgment became final and conclusive thereafter.

(4) We examine these facts in light of the legal principles as seen earlier.

At the third date for pleading of the first instance trial, Defendant 2 admitted the instant agreement as “approving the formation,” and the term “approving the formation,” as it means recognizing that it is a document prepared on the basis of the will of the originator. As such, Defendant 2 led to the confession of the authenticity of the said agreement.

Defendant 2 may revoke the fact that the confession was contrary to the truth and due to mistake. However, in light of the main contents of the evidence No. 103-1, A No. 116, and other facts as seen above, the evidence presented by the court below cannot support the fact that the confession by Defendant 2 was contrary to the truth or due to mistake, and thus, it cannot be deemed that such fact was proven.

Nevertheless, the lower court determined that Defendant 2’s confession was lawfully revoked by proving that it was contrary to the truth and due to mistake. In so doing, it erred by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by misapprehending the legal doctrine on the revocation of confession, thereby adversely affecting the conclusion of the judgment.

B. Whether Defendant 1 consented to the assignment of claim to Nonparty 3 to Nonparty 2

The court below rejected the plaintiff's assertion that the non-party 3 had already transferred the loan claim against the defendant 1 to the non-party 2 before his death, and that the defendant 1 acquired the loan claim against the non-party 3 to the non-party 1 by inheritance or by transfer to the other inheritor.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court did not err in its judgment by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules, or by exceeding the bounds of the reasoning.

C. Of the judgment of the court of first instance, the court below corrected that the provisional execution sentence against the non-party 1 and the non-party 2 was deleted, and whether the plaintiff can contest this.

Although the first instance court ordered the non-party 1 and the non-party 2 to notify the transfer of claim, it issued a provisional execution order, the lower court corrected the deletion of the provisional execution.

Inasmuch as the Plaintiff did not file an appeal against Nonparty 1 and Nonparty 2, the lower court cannot contest the corrected portion of the first instance judgment that deleted a provisional execution sentence against Nonparty 1 and Nonparty 2. The judgment ordering the notification of the assignment of claims is not allowed by nature, so there is no error of misapprehending the legal doctrine regarding the declaration of provisional execution, contrary to what is alleged in the grounds of appeal.

3. Conclusion

The appeal on Defendant 2 is dismissed as it is unlawful. The plaintiff's appeal on Defendant 2 is with merit. The part against Defendant 2 among the part against the plaintiff is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's appeal on Defendant 1 is dismissed as it is without merit, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

[Attachment] List of Appointeds: Omitted

Justices Lee Dong-won (Presiding Justice)