(영문) 대법원 2016.5.24.선고 2015다77748 판결

1. A. Although there is no special restriction on the method of proving the authenticity of a private document, the method of proving the authenticity thereof requires credibility. In a case where the authenticity of a document is acknowledged by a witness’s testimony, the reasonableness of the content of testimony, the attitude of witness’s testimony, the consistency with other evidence, the interests in the case of a witness, the relationship with the parties, etc. should be comprehensively examined (see, e.g., Supreme Court Decision 2004Da40306, Dec. 9, 2005). When a disposal document is established when the authenticity of a document is recognized, the existence of declaration of intent in accordance with the contents of the document and its contents should be recognized, in light of the fact that the existence of declaration of intent and its contents should be recognized, in a case where the authenticity of a disposal document is recognized (see, e.g., Supreme Court Decision 2002Da34666, Sept. 6, 2002).

B. Meanwhile, the submission of a document shall be made as the original, not the original, but the submission of evidence by a simple copy is unlawful in principle as there is no assurance of accuracy. As such, if disputes over the existence of the original and the authenticity of the establishment of the original, and there is an objection from the other party against the substitution of the original, the submission of the copy may not replace the original by means of a copy. On the other hand, if the copy is submitted as the original, it shall be independent documentary evidence, but it shall not be deemed that the copy has been submitted by evidence, and it shall not be deemed that there is the same original as the copy, and unless it is recognized that the original has been duly formed by evidence, there is no evidence that there is such a copy. However, if the party applying for the copy of a document loses the original document in good faith, if it damages it, a third party who does not have an obligation to comply with the order to submit the document, it may not submit the original document, or if it is not required to submit it in a non-realistic situation, such as a large quantity of documents, it shall not be presented to the relevant party (see, 20.

C. In addition, the principle of free evaluation of evidence declared by Article 202 of the Civil Procedure Act means that it is not necessary to be bound by formal and legal evidence rules, and it does not allow a judge’s arbitrary judgment. Thus, the recognition of facts should be in accordance with logical and empirical rules based on the principle of justice and equity, based on the evidentiary evidence admitted through legitimate evidence examination procedures, and the fact-finding should not exceed the limit even if it belongs to the discretion of the fact-finding court (see, e.g., Supreme Court Decision 2009Da7198, 77204, Apr. 13, 2012).

2. According to the reasoning of the judgment below, in this case where the defendant disputes the authenticity of the payment note (Evidence A No. 1, hereinafter referred to as "the payment note of this case") dated September 30, 2009 and the payment note (Evidence A-1, hereinafter referred to as "the payment note of this case") dated September 30, 2009, the court below acknowledged that the defendant sent the payment agreement of this case to H Co., Ltd. (hereinafter referred to as "H") whose representative director was the representative director by facsimile, and that there is no person who has a liability relationship with the plaintiff in H., the court below recognized the authenticity of the payment agreement of this case on the ground that it was a document prepared by the defendant and sent by facsimile, and (2) recognized that the contents of the payment note of this case are similar to those of the payment note of this case in substitution for the amount of the license acquisition price of construction business and the obligation of the defendant to pay the payment agreement of this case to the plaintiff based on the agreement of this case (hereinafter referred to as "the payment note of this case").

3. However, examining the reasoning of the lower judgment and the facts revealed by the duly admitted evidence in light of the legal doctrine as seen earlier, the following circumstances are revealed.

A. (1) On April 20, 2010, the details of facsimile transmission in the upper part of the instant letter of payment indicate that the Defendant sent the instant letter of payment from H to H on April 20, 2010. However, the upper part of the instant letter of payment states that the Defendant sent the instant letter of payment to 1:48 on May 10, 2010 without indicating the sender’s address. As such, the instant letter of payment is not immediately sent from H to the Plaintiff via facsimile, but rather sent the instant letter of payment to H on April 20, 2010, and the addressee sent the instant letter of payment to the Plaintiff on May 10, 2010 after the lapse of 20 days. However, it is difficult to readily conclude that the Defendant sent the instant letter of payment to the Plaintiff on May 10, 201, by means of facsimile that the Plaintiff was not entitled to send it to any other person, and thus, it is difficult to conclude that the Plaintiff was not entitled to receive the instant letter of payment.

(2) On the other hand, the instant letter of payment sent by the Plaintiff on May 10, 2010, is accompanied by a copy of the Defendant’s identification card. However, the items to be attached to the instant letter of payment do not include the Defendant’s identification card, and the time when the Defendant’s identification card was sent at H is indicated at the latest ten minutes compared to the instant letter of payment and other accompanying documents, and it is unclear whether the Defendant’s identification card was sent from the beginning with respect to the instant letter of payment because the serial numbers are not connected. Moreover, the serial numbers of the documents sent at H among the facsimile transmission details indicated in the instant letter of payment are printed in number 1 to 8, but the documents were not submitted twice.

(3) In addition, the instant letter of payment is accompanied by a copy of the passbook in the name of the Plaintiff stating the details deposited by the Defendant to the Plaintiff on November 3, 2009 by Internet banking. However, in order for the Defendant to prove the fact that the Defendant voluntarily transferred the instant letter of payment to the Plaintiff, it is common to attach the copy of the passbook in the name of the Defendant or the Defendant’s Internet banking details, and it is difficult to obtain any revenue by attaching the copy of the passbook in the name of the Plaintiff, the remitter. Moreover, the said passbook was issued on August 7, 2008, and the Plaintiff already resigned from the position of executive officer on the register, so it is difficult to hold the said passbook in the name of the Plaintiff at the time of transmitting the instant letter of payment.

(4) On September 30, 2009, the witness C of the first instance trial demanded that the Defendant pay the Plaintiff the premium rate of 15% in return for the use of D’s construction business license before acquiring D before acquiring D with the Plaintiff and the Defendant, but received a claim from the Defendant that the Defendant was too high, and the Defendant did not reach 16%. Nevertheless, the general construction work settlement statement attached to the instant payment agreement is written as 16%, which is contradictory to the Defendant’s previous attitude that the Defendant’s payment rate of 15% was too high.

(5) Ultimately, unlike as recognized by the lower court, it is insufficient to recognize that the Defendant prepared the instant letter of payment and sent it by facsimile to the Plaintiff only with the facsimile transmission indicated in the upper part of the instant letter of payment, which is contrary to the fact that the Defendant prepared the instant letter of payment. Rather, it is insufficient to deem that the authenticity of the instant letter of payment, which is only a copy, has been sufficiently proven.

B. (1) The Plaintiff submitted to the Plaintiff a copy of the payment note stating that “the Defendant would pay KRW 130 million to the Plaintiff in three installments.” The Defendant consistently asserted in the reply that “A” was forged and the authenticity of its establishment was denied from the date of the sixth pleading, but the Plaintiff asserted that the Defendant prepared the payment note No. 1 and then delivered the original copy to the Plaintiff. However, it is difficult to obtain a copy from the empirical rule to deliver the original copy to the obligee. In addition, the Plaintiff asserted that the Plaintiff had to pay KRW 130 million to the Plaintiff in three installments, and that the Plaintiff received a copy that is not the original copy upon the Plaintiff’s request for a seal imprint and a certificate of personal seal imprint. The Plaintiff’s assertion alone is difficult to deem that the Plaintiff failed to submit the original copy under subparagraph 1.

(2) The date of the instant settlement statement is indicated as September 30, 2009, and the written confirmation of settlement prepared by the Plaintiff, the Defendant, and C (hereinafter referred to as the “written confirmation of settlement”) is written as October 25, 2009. The Plaintiff asserts that the date of the written confirmation of settlement of the instant case is a clerical error on September 25, 2009 and the written confirmation of settlement was prepared again five days after the date of the settlement. However, the written confirmation of settlement of the instant case states that “The settlement statement of this case is to separately include the amount confirmed by October 31, 2009, and it is difficult for the Plaintiff to prepare the written confirmation of settlement of the amount to be paid to the Plaintiff as KRW 50,000,000,000,000,000,000,0000,000,0000,000,0000,000,000,000,000 won.

(3) On November 3, 2009, the Defendant paid KRW 30 million to the Plaintiff. This appears to have been stated in the instant settlement statement as of November 5, 2009, when the due date for payment of the first installment out of the settlement amount was stated on November 5, 2009. The due date for payment of the installment stated in the instant settlement statement is stated in one month or after the due date, and there seems to be no reason for the Defendant to pay the settlement amount to the Plaintiff in advance.

(4) On September 30, 2009, the witness C of the first instance trial settled accounts with the Plaintiff and the Defendant for the construction installment and D takeover amount, and the Defendant testified that he would prepare and affix a letter of payment in this case to the Defendant, and that he had the seal affixed to the Defendant. However, ① the Defendant did not use the seal on other documents than the letter of payment in this case, and the above letter is different from the seal affixed to the letter of payment in this case submitted by the Plaintiff, and ② the Plaintiff, the Defendant, and C signed the letter of payment in this case without signing the letter of payment in this case, and ② the Plaintiff, the Defendant, and the C signed the letter of payment in this case without signing it, and it does not appear that there was any reason to bring the seals, not the seal affixed, to the other hand, and ③ the Plaintiff’s representative director was transferred to the Defendant.

As such, it seems that the witness C was in the position of settling accounts against the Defendant for the Plaintiff, and in light of this, it is difficult to believe that the witness C’s testimony concerning the establishment of the authenticity of the instant payment note is the same.

(5) Ultimately, since the Plaintiff did not submit the original copy of the instant payment note, and did not prove and prove specific grounds for legitimate submission of the original copy, it is difficult to recognize credibility in the witness C’s testimony. Rather, compared to the instant payment note, the form and content are contrary to the form and content. Therefore, it is difficult to deem that the instant payment note has proved its authenticity.

4. Nevertheless, solely on the grounds as seen earlier, the lower court determined that: (a) erroneous recognition of the authenticity of the instant letter of payment and the instant letter of payment; and (b) on that premise, the Defendant is liable to pay the money agreed upon pursuant to the instant letter of payment. Therefore, the lower court erred by misapprehending the legal doctrine on the certification of the authenticity of the instrument of disposition, thereby failing to exhaust all necessary deliberations; and (c) exceeding the bounds of the principle of free evaluation of evidence going against logical and empirical rules,

5. 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.