[1] The validity of the rescission of a mutual agreement between the parties where a mutual agreement has been concluded between multiple parties, and whether the rescission of a mutual agreement without an agreement or discussion on the resolution of legal relations that may arise therefrom constitutes an example of empirical rule (affirmative)

[2] The case holding that the cancellation of a mutual agreement between Gap, Eul, and Byung cannot be recognized as a cancellation of mutual agreement with Eul, considering the fact that the termination of mutual agreement between Gap, Eul, and Eul alone does not resolve the legal relations between the two parties, and thus, the termination of mutual agreement without any agreement or discussion is an exceptional in light of the empirical rule

[1] Under the principle of freedom of contract, the restoration of the old obligation by rescinding an agreement, explicitly or implicitly, after the formation of a renewal contract may be at least between the parties. In addition, where a renewal contract has been concluded between multiple parties, it shall not be deemed null and void even if only some of the parties have rescinded the renewal contract. However, if only a part of the parties have rescinded the renewal contract, it is only against the parties who have agreed to rescind the renewal contract. However, if only a part of the parties has rescinded the renewal contract, the former obligation may be restored among them, and the remaining parties still have the effect of the new obligation under the renewal contract, thereby not clearly regulating the legal relationship between the parties. Since the parties to the rescission of the renewal contract may have an important interest in resolving this problem, it is an agreement to cancel the renewal contract only between them without any agreement or discussion, it falls under this example in light of the empirical rule.

[2] The case holding that in a case where a settlement agreement and a sales contract between Gap, Eul, and Byung in a credit and obligation of Eul are concluded between Eul, Eul, and Eul, the debtor Eul, Eul, Eul, and Byung, and the creditor of Eul, Eul, were changed from Eul to Eul, and the contents of each of the above obligations are changed to Eul's performance of obligations under a sales contract between Byung and Byung, the above settlement agreement and the sales contract constitute a light agreement stipulated in Article 500 of the Civil Code, on the ground that the cancellation of the settlement agreement between Eul and Eul does not have the effect of the cancellation, and the legal relationship between Eul and Eul is not resolved. Thus, it cannot be acknowledged that Gap and Eul terminated the settlement agreement only without any agreement or discussion is an exceptional in light of the empirical rule, considering the fact that the settlement agreement paid by Eul was withdrawn from Eul.

[1] Articles 500 and 543 of the Civil Act, Article 202 of the Civil Procedure Act / [2] Articles 500 and 543 of the Civil Act, Article 202 of the Civil Procedure Act

[1] Supreme Court Decision 94Da17093 delivered on September 13, 1994 (Gong1994Ha, 2640) Supreme Court Decision 2002Da62333 delivered on February 11, 2003 (Gong2003Sang, 788) Supreme Court Decision 2004Da11506 delivered on June 11, 2004

Plaintiff (Attorney Yoon In-bok, Counsel for the plaintiff-appellant)

Defendant 1 and one other (Law Firm Tae, Attorneys Park Tae-tae et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2009Na60604 decided November 27, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

We examine the grounds of appeal.

1. As to the violation of the rules of evidence against the parties to loan claims (ground of appeal No. 2)

This part of the grounds of appeal is merely an error in the selection of evidence and fact-finding which belong to the full authority of the fact-finding court, and it cannot be viewed as a legitimate ground of appeal. In addition, even if examining the records, the person who borrowed money from the plaintiff from the plaintiff is the defendant 1, it is justified

The court below did not err in the misapprehension of the rules of evidence, incomplete hearing, or legal principles.

The ground of appeal on this part is without merit.

2. As to the misapprehension of legal principles as to the rescission of agreement on settlement of accounts (Ground of appeal No. 1)

According to the reasoning of the judgment below, the court below found that the above agreement was concluded by the plaintiff 1, 204 to the above 30 million won for the defendant 1 to the above 100 million won and the above 100 million won interest rate was 2.5% of the above 100 million won interest rate for the defendant 2's loan and the above 30 million won interest rate was 5 billion won. The defendant 1 lent the above loan and interest rate was 30 million won to the non-party 1 to the above 40 million won, and the defendant 2 was 50 million won interest rate was 10 million won for the above 50 million won interest rate was 10 million won for the above 50 million interest rate for the defendant 2's loan and the above 100 million interest rate was 9 billion won for the above 50 million interest rate was 10 million won. The plaintiff 1 was able to pay the above 100 million won interest rate as to the above 500 million interest rate.

First, based on the facts acknowledged by the court below, examining the legal nature of the settlement agreement and sales contract concluded between the plaintiff, defendant 1 and the non-party, it constitutes a novation agreement as stipulated in Article 500 of the Civil Act, and each of the above loan obligations against the non-party, which is an old obligation, is extinguished due to novation. In other words, the loan obligations against the plaintiff by defendant 1 were modified from defendant 1 to the non-party, and the creditor against the non-party against the non-party was changed from defendant 1 to the non-party, and each of the above obligations was changed into the performance of the obligation under the sales contract between the plaintiff and the non-party. In the same purport, the court below is justified to have determined that the loan obligations against the plaintiff as the old obligation was extinguished as a conclusion of the settlement agreement and sales contract.

However, since the above settlement agreement between the plaintiff and the defendants was terminated by agreement, the defendants are not obligated to repay the debt of this case, which is the old debt, to the plaintiff in the following respect.

According to the principle of freedom of contract, the restoration of the old obligation by cancelling an agreement either explicitly or implicitly after the formation of an open contract is at least possible between the parties (see Supreme Court Decision 2002Da62333, Feb. 11, 2003). In addition, where an open contract is concluded between multiple parties, only a part of the parties may not be deemed null and void even if they cancel the open contract. However, if only a part of the parties have agreed to cancel the open contract, the effect is merely on only the parties who have agreed to cancel the open contract. However, if only a part of the parties have rescinded the open contract, the former obligation may be restored among them, and the new obligation under the open contract still remains effective between the other parties, and the legal relationship between the parties is not clearly regulated. Since the parties who have agreed to cancel the open contract would also have an important interest in resolving this problem, it is see Supreme Court Decision 2000Da16340, Apr. 14, 199, etc. 200).

In light of the above legal principles, even if the agreement between the Plaintiff and Defendant 1 on the rescission of the settlement agreement is valid, the validity of the rescission cannot be affected to the Nonparty. As a result, if only the settlement agreement is rescinded, Defendant 1’s obligation is restored to the Plaintiff in relation to the relationship with the Plaintiff, while in relation to the relationship with the Nonparty, the obligee was changed to the obligee through the conclusion of the sales contract. From the Plaintiff’s standpoint, despite the restitution of the former obligation against Defendant 1, the sales contract still entered into with the Nonparty still exists with the Nonparty. As such, the Plaintiff’s ownership of the instant real estate, and the ownership of the instant real estate from the Nonparty, Defendant 1’s acquisition of the loans from the former obligation, and the settlement agreement cannot be exempted from the obligation under the sales contract, which the Plaintiff bears against the Nonparty as the purchaser of the instant real estate. As such, considering that the cancellation of the settlement agreement was not effective, it is difficult to recognize that the Plaintiff’s settlement agreement and the Plaintiff’s settlement agreement were not resolved solely on the basis that the agreement was rescinded between the Plaintiff 1 and the Nonparty.

Furthermore, even when collecting various circumstances cited by the lower court, there is insufficient reason to recognize that the Plaintiff terminated the settlement agreement and the sales agreement between the Plaintiff, Defendant 1, and Nonparty 3. Even based on the Plaintiff’s assertion, the Plaintiff did not have any contact with the Nonparty at the time of withdrawal of the said agreement from Defendant 1, and thus, whether the implied termination of the settlement agreement and the sales agreement can be established between the Plaintiff, Nonparty, and Defendant 1. In so doing, the intent of the parties not to realize the contract should be objectively consistent due to the lack or renunciation of the parties’ intent to realize the contract after the contract (see Supreme Court Decision 2001Da63575, Jan. 25, 2002).

According to the records, the non-party can be found to have been exempted from interest or delay damages equivalent to an amount of money due to the conclusion of the instant sales contract by Defendant 1, the creditor, and under such circumstances, the non-party did not have any special opportunity to cancel the sales contract and restore the former obligation owed by Defendant 1 to Defendant 1. As pointed out by the court below, it was true that the non-party filed a lawsuit against the plaintiff at the latest after the decision of the first instance court was rendered by the non-party, but it could be sufficiently possible for the non-party to claim his right after reporting the outcome of the instant lawsuit between the plaintiff and the defendants to observe the outcome of the instant lawsuit and corresponding thereto. The non-party’s statement that “The non-party refused to sell the instant real estate by additionally receiving KRW 250 million from the plaintiff and attempted to sell the instant real estate, but failed to properly perform the sales contract due to the unilateral reversal of the plaintiff.” Thus, it is insufficient to view that the aforementioned settlement agreement and rescission of the sales contract were objectively consistent with the intent not to realize the settlement agreement and the sales contract.

The judgment of the court below is erroneous in the misapprehension of legal principles as to the settlement agreement and the rescission of the contract.

The ground of appeal pointing this out is with merit.

3. Conclusion

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Yang Chang-soo (Presiding Justice)