[약정금청구사건][고집1973민(1),30]
The case holding that the motive mistake is merely a mistake
In order to have an error in the important part of the contents of a juristic act, it should be deemed that there is a mistake in the fact that there is no fact at the time of the juristic act, and that there is no fact that there is no fact actually, and that there is no fact that there is no fact, it is against the perception of the marker and the fact that there is no fact that there is no fact. Therefore, if the party who lost his liability for the tort in the first instance court predicted that it would be the same result in the higher court and agreed with the victim, even if he won it later in the higher court, it cannot be deemed that there is a mistake in the important part
Articles 109 and 760 of the Civil Act
Supreme Court Decision 71Da2193 delivered on March 28, 1972 (Supreme Court Decision 100052 delivered on March 20, 197, Supreme Court Decision 200Da160 delivered on March 23, 199(12)239 of the Civil Act
Korea Commercial Transport Corporation
Hanjin Co., Ltd.
Seoul Central District Court (72 Gohap2698) in the first instance trial
The defendant's appeal is dismissed.
Expenses for appeal shall be borne by the defendant.
The plaintiff paid 4,020,459 won to the plaintiff.
The judgment that the lawsuit costs should be borne by the defendant and the judgment of provisional execution are the declaration of provisional execution.
The defendant shall revoke the original judgment.
The plaintiff's claim is dismissed.
The court costs are assessed against all the plaintiff in the first and second trials.
Before the merger of the defendant company, the non-party Hanjin Tourism Co., Ltd. (the second to the non-party company is the non-party company) and the plaintiff company are engaged in the automobile transportation business. The non-party 5-5763 small gaomomer and the non-party company's 5-1127 large gaomer on December 7, 1969, when collisions with the non-party company's sports 5-127 large gaomer around 07:10 on December 7, 1969, the plaintiff and the non-party company of this case were killed among the passengers. The above victims filed a lawsuit claiming damages against the plaintiff of this case and the non-party company of this case with the same court 70Ga51, 70Ga198 and 70Ga513, and the plaintiff and the non-party company of this case were jointly and severally paid the total amount of the above plaintiffs of 5,793,975 won to the non-party company and the non-party company of this case from the court.
The judgment that a provisional execution may be executed only for KRW 2,50,000. The above non-party company was executed with a gold amount of KRW 2,577,930, including enforcement expenses, etc. Based on this judgment. The plaintiffs and the defendants appeal all of the above cases and the hearing from Seoul High Court to KRW 70Na2885 was continued, and the plaintiff and the above non-party company, the defendants of the above case, are the defendants of the above case.
(1) The Plaintiff paid KRW 2,400.00 to the above non-party company as damages compensation for the appeal case of Seoul High Court 70Na2885, which is the appeal case of the above non-party 70Ga198, 70Ga513 and 70Ga51 (the above non-party company was only the execution based on the final judgment or the provisional execution sentence).
(2) The plaintiff of this case is not liable for the above Seoul High Court case 70Na2885. The defendant of this case is solely liable for all civil liability related to the above case at the same time after receiving 2,400,000 won from the plaintiff of this case and receiving 2,400,000 won.
(3) The above litigation case (related to the above traffic accident) entered into an agreement with the plaintiff that all civil liabilities against the victim other than the above litigation case shall be borne by the plaintiff of this case. Under this agreement, the plaintiff of this case paid gold 2,400,000 won to the non-party company above the above non-party company on December 30, 1971. The Seoul High Court ruled that the above non-party company is not liable for the above accident on December 30, 1971. The above non-party company ordered the payment of KRW 6,598,389 in total with compensation for damages recognized only as liability against the plaintiff of this case. The plaintiff of this case appealed to the Supreme Court of Korea on September 11, 1972, and the above judgment became final and conclusive as it was, and on April 1, 1972, the fact that the non-party company was merged with the defendant company and succeeded to the rights and obligations of the above non-party company was not a dispute between the parties.
Since the above non-party company's agreement was concluded as above with the plaintiff and the above non-party company's joint tort case 70A198, 70A51 (the original judgment 70Na2885) and the non-party company's joint tort liability is ordered to jointly pay damages. Thus, the above non-party company becomes aware that it is jointly liable for the above traffic accident and it is erroneous in its expression of intent, and the above non-party company has cancelled its declaration of intention on the ground of mistake of the element 6 January 1972, and thus the above agreement loses its validity. Thus, the non-party company's assertion that it did not have any error in the important part of the legal act as provided in Article 109 of the Civil Code is no more than 7 of the above non-party company's non-party company's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 2's non-party 3's non-party 2's opinion.
In addition, even though an error in the above agreement was merely an error of the parties to the agreement, the above agreement was concluded on the premise that the above 70-151 case and the non-party company joint tort liability of the plaintiff and the non-party company as in the appellate court (70Na2885) or the court of final appeal is recognized, as in the judgment of the court of first instance, so mistake of the premise fact is a mistake of motive indicated because the parties to the agreement already known the facts. Accordingly, the above agreement is a defense that the above non-party company's above non-party company's cancellation declaration of intent as of January 6, 1972, which caused error of motive indicated, would be invalidated by the non-party company's above 70-151 case as in the appellate court's judgment, and that the above agreement was concluded on the premise that the defendant's joint tort liability of the non-party company and the non-party company's non-party company's non-party company's non-party company's non-party company's non-party company's non-party joint tort liability should be established as evidence and evidence of this case's first instance.
In this case, the defendant is obligated to pay KRW 4,098,389 to the extent of KRW 6,59,389, which is the remainder after deducting the amount of KRW 2,500,00 already executed by provisional execution from among the amount of KRW 6,598,389, which was cited as damages for the above 70Na2885 case in accordance with the terms of the above agreement entered into with the defendant's merger company (i.e., gold KRW 6,598,389, KRW 2,500,00). Thus, the plaintiff's claim seeking payment is justified and justified and the defendant's appeal seeking payment is without merit. Accordingly, the court below's judgment is dismissed pursuant to Article 384 of the Civil Procedure Act and the costs of appeal are assessed against the defendant who has lost.
Judges Kim Yong-chul (Presiding Judge) expected from Jinology