[1] Matters to be proved by a person who revokes his/her declaration of intent on grounds of mistake

[2] In a case where Party A, an affiliate to the same group, completed the construction of relocating the transmission lines over which Party B, an affiliate to the same group, used to set up superficies, etc. on the site of the new transmission lines after the completion of the construction of the construction of the construction of the installation of the transmission lines in the outer range, and Party B, the case holding that the lower court erred by misapprehending the legal principles as to the cancellation of declaration of intent due to mistake in the material part of the terms of the new contract, even though it is difficult to view that Party B did not enter into the new contract, or would not have entered into the new contract if there was any error, even though it was difficult to view that Party B did not enter into the new contract, and that Party B could cancel the contract because of mistake in the material part of the existing contract, the lower court erred by misapprehending the legal principles as to the cancellation of declaration of intent due to mistake

[3] Whether an act of invalidation or an act of unauthorized representation can be ratified by an implied method (affirmative), and the case where such an implied ratification may be deemed to have been made

[1] Article 109(1) of the Civil Act, Article 288 of the Civil Procedure Act / [2] Article 109(1) of the Civil Act / [3] Articles 130 and 139 of the Civil Act

[1] Supreme Court Decision 2007Da74188 Decided January 17, 2008 (Gong2008Sang, 218) / [3] Supreme Court Decision 2010Da8319, 83205 Decided February 10, 201 (Gong2011Sang, 565) Supreme Court Decision 2012Da112299 Decided February 13, 2014 (Gong2014Sang, 577)

Korea Electric Power Corporation (Law Firm, Attorneys Kim Jong-min et al., Counsel for the plaintiff-appellant)

Hung Tourism Development Corporation

Note 3.2 Doz.

New Gyeonggi Tourism Co., Ltd. (Law Firm Mayang, Attorneys Kim Jong-hwan et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2012Na73006, 73013 decided February 12, 2014

The part of the judgment below against the plaintiff (Counterclaim defendant) as to the claim for the establishment of a right of lease, the part concerning the claim for the registration of establishment of superficies, the part concerning the claim for the confirmation of existence of a right of lease, the part concerning the claim for the principal lawsuit against the defendant (Counterclaim plaintiff), the part concerning the claim for the return of unjust enrichment on each land listed in the separate sheet No. 6 of the judgment of the court below among the claim for the counterclaim against the defendant (Counterclaim plaintiff) for the counterclaim against the defendant (Counterclaim plaintiff), and this part of the case is reversed, and this part of the case is remanded to the Seoul High Court. The remaining appeal by the plaintiff (Counterclaim defendant) and the appeal by the defendant (Counterclaim plaintiff) against the defendant (Counterclaim plaintiff) are all dismissed. The costs of appeal between the plaintiff (Counterclaim defendant) and the

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

1. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. The Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) is a legal entity established under the Korea Electric Power Corporation Act. Defendant Open Tourist Development Co., Ltd. (hereinafter “Defendant Open Tourist Development”) is a legal entity that operates the “AlleyCC,” which is a golf course located in Young-si. The Defendant (Counterclaim Plaintiff) New Gyeonggi Tourism Co., Ltd. (hereinafter “Defendant New Gyeonggi Tourism”) is a legal entity that operates the “Korea Broadcasting Co., Ltd.”, which is a golf course adjacent to the same Gu. Defendant (Counterclaim Plaintiff) Co., Ltd., Ltd. (hereinafter “Defendant Lessee”) is an affiliate affiliated to the Korea Golf Village Group (hereinafter “Defendant Lessee”) along with Defendant Open Tourist Development, New Gyeonggi Tourism Development, and New Gyeonggi Tourism Tourism. An affiliated company that belongs to the Korea Golf Village Group (hereinafter “PP”) as a farming company established for the management of farmland in the vicinity of Korea, and is one of the agricultural affiliated companies of Defendant New Tourism Co.,, Ltd. (hereinafter “Defendant New Tourism Co.,, Ltd. (hereinafter “Defendant Lessee”) holding the land as a real estate trust.

B. Around 2004, the Plaintiff promoted the construction project of the 345km Credit Card in preparation for electric demand according to the large-scale development plan in the Southern-do Southern-do area (Seong local industrial complex, and the emulic city). When the plan was established that part of the power transmission line in the section of the transmission steel tower passes through the world around the GadCC operated by the Defendant GadCC, the Defendant Gag Tourism Development filed a civil petition requesting the modification of the plan to pass beyond the outer range of the GadCC, around May 2004. The Plaintiff consulted on the adjustment of the development of the Gag Tourism and the height of the steel tower and the change of the passage of the steel tower for prompt resolution and completion of the construction work.

C. On June 2, 2004, Defendant Open Tourist Development received the said 345kV transmission line going through the airspace around the SadCC as originally planned by the Plaintiff, and instead, requested the Plaintiff to transfer the steel tower No. 15-22 of the steel tower No. 15-V and the transmission line (hereinafter “the transmission facility of the instant 154kV line”) indicated in the annexed drawings of the lower judgment among the 154kV credit transmission line, which was in operation by Defendant New Tourist, to the outside of the golf course. Thereafter, on June 2, 2004, the Plaintiff and Defendant Open Tourist Development requested the Plaintiff to change the steel tower No. 15-22, as indicated in the annexed drawings of the lower judgment (hereinafter “instant Convention”).

D. On January 1, 2005, the Plaintiff entered into a contract for the relocation of a specific transmission line with Defendant Open Tourist Development. On September 29, 2009, the instant Construction was not commenced. On September 29, 2009, the Plaintiff requested the Plaintiff to change the parties to the contract for the relocation of the transmission line from Defendant Open Tourist Development to Defendant 1’s land and to change the content of the contract. On October 15, 2009, the Plaintiff approved the remainder of the contract, excluding the land secured from the land secured, at the request of the parties to the contract for the alteration of the contents of the contract. After doing so, the Plaintiff and Defendant Open Tourist Development entered into a new contract for the relocation of the transmission line (hereinafter “instant contract”). The key contents are as follows.

(1) The Defendant land deposit shall carry out all of the relocation work related to the construction work, such as the selection of passage areas, rental authorization and permission, construction design, material securing, construction contract, construction work, construction work, etc. on its own responsibility (Paragraph (1)).

(2) The transfer process shall pass through the outside side of the KoreaCC site, and the Defendant shall be provided free of charge with the steel tower site, and the Plaintiff shall revert the existing steel tower facility site (No. 16-18) to the Defendant’s land to the Defendant’s land. In relation to the removal line, the compensation for the land on board outside the KoreaCC site shall be borne by the Defendant’s land and the right to secure the title shall be jointly carried out by mutual cooperation. The Defendant land deposit shall transfer the original document related to the acquisition of the land before the commencement of the removal work to the Plaintiff so that the Plaintiff may establish the right to lease and superficies for the land on the steel tower site. The Plaintiff’s right to select the support and not on the ship shall be registered in the Plaintiff’s name pursuant to the Registration of Real Estate Act (Provided, That the right to lease not on board shall be subject to the decision of the Plaintiff’s Land Purchase Committee where it is difficult to register due to the refusal of registration by the person liable for registration) (Article 6(6)))).

(3) The total cost of the construction works incurred shall be borne by the Defendant U.S. (Paragraph 19).

E. The relocation of the instant case was completed including mountainous district restoration work, and was removed from the existing transmission file and the transmission guidance for the electric transmission file on KoreaCC, and was relocated to the external outline of KoreaCC.

2. The part demanding the confirmation of the existence of an obligation among the claims filed against the Defendant for the development of the tourism industry

The lower court, on September 29, 2009, rejected the Plaintiff’s claim for the confirmation of the existence of the obligation for the Defendant’s development of the instant loan agreement, on the premise that the Defendant Oral Tourist Development was a party to the instant loan agreement, by deeming that the Defendant Oral Tourist Development retired from the instant loan agreement by transferring the status of the instant loan agreement to the Defendant Oral Tourist Deposit and consenting thereto on October 15 of the same year.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, such determination by the lower court is justifiable. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence inconsistent with logical and empirical rules,

3. The part concerning the main claim against the defendant's land deposit

A. Whether the contract of this case is null and void

(1) On the grounds delineated below, the lower court rejected the Defendant’s assertion that the instant relocation contract is null and void.

Article 5 of the Act on Contracts to Which the State is a Party is set forth in the general principles concerning the conclusion of a contract, and thus, cannot be readily concluded that the contract of this case is null and void solely by its violation. It is difficult to deem that the contract of this case was in violation of the Act on the Acquisition of and Compensation for Land, etc. for Electric Utility, Electric Source Development Promotion, and Land, etc. for Public Works in the course of the conclusion and execution of the contract of this case. Since the contract of this case was based on the contract of this case, it is difficult to view that the deposit in Defendant land had concluded the

(2) Examining the reasoning of the lower judgment in light of the evidence duly admitted, such determination by the lower court is justifiable. In so determining, the lower court did not err by misapprehending the legal doctrine on the effect of violation of the Act on Contracts to Which the State is a Party and on unfair legal acts, nor did it be deemed that the instant contract violates the provisions on

B. Whether the contract of this case was cancelled due to mistake

(1) For the following reasons, the lower court determined that the instant snow contract was concluded by mistake in Defendant C, which is subject to revocation, and that the written reply dated April 21, 201, which contained a declaration of intent to revoke the instant snow contract, was delivered to the Plaintiff on April 25, 201, but the revocation by mistake in Defendant C’s land was only effective as to the part of the agreement that the said Defendant created the right of lease and superficies with respect to the newly established site and imposes compensation for the said site among the instant snow contract.

(A) The Defendant Open Tourist Development, which first concluded the instant relocation contract, was aware of the fact that the Plaintiff had a legitimate title to the existing track site and had installed the transmission steel tower and the transmission cable, and was erroneous, thereby entering into the instant relocation contract with the Plaintiff. The Defendant Park Jong-dae also was transferred the status of a party to the instant relocation contract, resulting in the omission of the aforesaid error.

(B) The above motive mistake is not only indicated as the content of the instant relocation contract, but also is an important part of the instant relocation contract, and thus is subject to revocation.

(C) If the Plaintiff knew at the time of the transfer contract of this case that he did not secure a legitimate title to install the transmission tower and the transmission line in the existing site, even if the Plaintiff did not bear the cost of the transfer construction, it would have been a profit to view that the transfer of the transmission line, which was passed through the airspace above the golf course, was an intention to bear the cost of the removal construction. However, the Plaintiff would not have agreed to set the superficies and the right of lease on the newly established track site and at the same time to bear the compensation for the newly established track site.

(D) The revocation by mistake in Defendant Chyh is effective only to the extent of the arrangement that the said Defendant created a right of lease or superficies with respect to the site newly established, and bears the compensation for the said site, among the transfer agreement of this case. Therefore, only to the extent of the agreement, the revocation by mistake is retroactively null and void.

(2) However, we cannot accept the above determination by the court below for the following reasons.

A person who revokes a declaration of intent on the ground of mistake, along with the fact that there was an error in the contents of a juristic act, had a critical impact on the declaration of intent, that is, the person must prove that he/she would not have made the declaration of intent if he/she had not made the mistake (see Supreme Court Decision 2007Da74188, Jan. 17, 2008, etc.).

In light of the following circumstances that could have been known through the process of concluding the instant survey contract and the records, it is difficult to readily conclude that Defendant Chyh was involved in the foregoing mistake solely on the basis of the circumstances acknowledged by the lower court, and barring any special circumstance to deem that the Plaintiff was unable to expropriate or use the site for the power transmission facilities of this case, it is difficult to deem that Defendant Chyh did not conclude the instant survey contract if there had been no such errors.

(A) The Defendant land manager asserted that “The Plaintiff requested the Defendant to cooperate on the part of the Defendant around 1987, but the Defendant refused to cooperate with the view to the landscape and safety accident of the golf course, on the ground that the Plaintiff was a public project.” In light of such assertion, the Defendant land custodian knew that the Plaintiff was using the instant 154kV credit transmission line under the condition that the Plaintiff was using the instant 154kV credit transmission line without the Defendant’s explicit permission prior to the conclusion of the instant snow contract.

(B) Article 6-2(1) of the Electric Power Source Development Promotion Act provides that “An electric source developer may expropriate or use the land, etc. necessary for the electric source development business,” and Article 2 Subparag. 2(b) of the same Act provides that “the business of acquiring the land, etc., installed or securing the right to use, etc., for the electric source development business.” The Plaintiff may expropriate or use the necessary land, etc. in accordance with the Electric Power Source Development Promotion Act, even in order to acquire the land, etc., installed or secure the right to use, even in order to acquire the land, etc., for the electric source facilities already installed or secure the right to use. If the Plaintiff sought to remove the power source transmission facilities of the 154km Credit Line on the ground that the Plaintiff did not have the right to own, the Plaintiff may obtain the necessary

(C) The Defendant land manager had a business need to move to install the instant transmission equipment even if he/she bears a reasonable amount of construction cost. Such determination of the business need not change even if the Plaintiff was able to receive the prescribed amount of compensation from the Defendant land in the event that the Plaintiff takes measures to expropriate or use the pertinent land.

Nevertheless, the lower court determined that there was an error in the important part of the content of the instant relocation contract, and thus, the deposit of the Defendant land could be revoked. In so determining, the lower court erred by misapprehending the legal doctrine on the revocation of declaration of intent due to an error, thereby adversely affecting

4. Part on the main claim against Defendant New Games tourism

A. Ratification of an invalidation or an unauthorized representation is a single act with knowledge of the invalidation, etc. and with the effect of such an act to vest in his/her own, and may be made by implied means. In cases where there are circumstances to deem that the principal sufficiently understood the legal status faced by the act and based on his/her truth that the result of the act belongs to himself/herself, it may be deemed that the ratification has been made impliedly (see, e.g., Supreme Court Decisions 2010Da8319, 83205, Feb. 10, 2011; 2012Da112299, Feb. 13, 2014).

B. The lower court rejected the Plaintiff’s claim on the principal claim against Defendant New Tourist seeking confirmation of the absence of the Plaintiff’s compensation liability for the site to be removed pursuant to the instant snow agreement. The reasons are that Defendant New Tourist is not a party to the instant snow agreement, and that Defendant New Tourist naturally cannot be deemed to have the validity of the instant snow loan agreement concluded between the Plaintiff and Defendant New Tourist Development, or between Defendant Daehan and the Plaintiff on the ground that Defendant New Tourist was an affiliate belonging to Korea Golf Recreation Group, along with the remaining Defendants.

C. However, the above determination by the lower court is difficult to accept for the following reasons.

(1) The conclusion of the instant snow contract with the purport of transferring the transmission steel tower and the transmission line installed in the site of the KoreaCC golf course operated by Defendant New Gyeonggi Tourism to the outside of the golf course, and the implementation of the instant snow removal project was a lodging business that Defendant New Gyeonggi Tourism continued to wish, and Defendant New Gyeonggi Tourism was directly benefiting from the contract.

(2) At the time, Nonparty 1, at the first instance court, was the representative director of the Defendant Rung Tourist Development, entered into the instant interest agreement with the instant interest agreement for the interests of KoreaCC or Korea Golf Recreation Group operated by Defendant New Tourist. The content of the instant interest agreement was reported to Nonparty 2 of Korea Golf Recreation Group, and Nonparty 2 finally stated that Nonparty 2 decided on the instant interest.

(3) In the first instance court, Nonparty 1 stated that, at the time of the establishment of a new golf course, the fact of the conclusion of the instant permanent agreement and the instant permanent agreement was known to Defendant New Games Tourism. In addition, according to the certified copy of the corporate register of Defendant New Games Tourism and the written evidence No. 46-1, Nonparty 1 was appointed and served as a director of Defendant New Games Tourism from March 26, 2007, and around October 18, 2007, Nonparty 1 sent to the Plaintiff an official door requesting that the Plaintiff install the instant permanent agreement after prior consultation so as not to be included in the site of the instant new golf course in the name of the representative director of Defendant New Games Tourism. In light of these circumstances, it can be seen that Defendant New Games was aware of the existence and content of the instant permanent agreement.

(4) On March 15, 2006, Defendant New Tourism transferred the ownership of the instant Lan Real Estate Trust on the ground of the trust on the land, i.e., Western 213-1, Busan 214-1, mountain 238-12, mountain 239-3, etc., in the event of the movement of the wife population that he owns on March 15, 2006. On November 2009, after the conclusion of the instant relocation contract, Hanol Real Estate Trust, a trustee, prepared and issued to the Plaintiff a written consent for land use on the said land, the power transmission facilities of which are to be relocated to the Plaintiff. Defendant New Tourism did not raise any objection regarding the instant Lan Project even during the period of the progress of the instant construction for more than six months at the land of Korea operated by it.

(5) On June 8, 2010, Defendant New Gyeonggi Tourism sent to the Plaintiff an official letter (No. 8) stating that “Defendant New Gyeonggi Tourism did not participate in the instant snow agreement, but has been implementing the instant snow construction at the time of Defendant New Gyeonggi Tourism by respecting the content of the instant snow agreement that was concluded between the Plaintiff and the Plaintiff, an affiliate, although it was not involved in the instant snow agreement.”

(6) In full view of the aforementioned circumstances, Defendant Newcompeting may be deemed to have partially performed the contractual obligation or cooperated with the instant snow Corporation by requiring Defendant Newcompeting Investment Trust to prepare and deliver to the Plaintiff a written consent for land use regarding the land where the power transmission equipment of Defendant 154kV is to be removed without the participation of Defendant Newcompeting Tourism and respecting the fact that the Plaintiff and Defendant Newcompeting Development entered into the instant snow agreement and the content thereof without the participation of Defendant Newcompeting Tourism. This may be deemed to have been implicitly recognized that the effect of the instant snow contract is to be effective. Accordingly, the lower court should have deliberated on the existence and content of the instant snow agreement and whether there exist any circumstances to deem that the outcome of the conclusion and performance of the said agreement belongs to himself, based on the intention of J, and should have determined whether the act of Defendant Newcoming Investment’s act of ratification, etc. was ratified by Defendant 3, an unentitled person.

D. Nevertheless, the lower court rejected the Plaintiff’s claim on the principal claim against Defendant New Games on the ground that Defendant New Games’s tourism did not have the validity of the instant permanent agreement solely on the ground that it was not a party to the instant permanent agreement. In so determining, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal doctrine on ratification, thereby adversely affecting the conclusion

5. The part concerning the claim for counterclaim against the defendant's land.

A. The claim for restitution of unjust enrichment against each land listed in the separate sheet No. 4 of the lower judgment (hereinafter “existing track site of this case”)

The lower court determined that the Plaintiff was obligated to return unjust enrichment from the possession and use of the existing track site from June 23, 200 to June 30, 2010 to Defendant New Sports Tourism. The reason is that the Plaintiff did not have the right of possession of the said land since there is no evidence to support the fact that the Plaintiff acquired superficies on the remaining land excluding the portion of 70 square meters of land listed in attached Table 43 of the lower judgment among the previous track sites of this case, or that he obtained permission for use from Nonparty 2 of Korea Golf Village Group.

Examining the reasoning of the lower judgment in light of the evidence duly admitted, the lower court’s aforementioned determination is justifiable. In so determining, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending

B. A claim for restitution of unjust enrichment on each land listed in the separate sheet No. 6 of the lower judgment (hereinafter “instant newly established track site”).

(1) The lower court determined that the Plaintiff was obligated to return unjust enrichment from the possession and use of the instant new track site from June 13, 2010 to Defendant New Gyeonggi Tourism. The reason is that the part of the instant new track contract, which the Plaintiff agreed to grant the Plaintiff the right of lease and superficies regarding the instant new track site and to bear the compensation for the said site, was revoked by exercising the right of revocation on the ground of the said Defendant’s mistake, and thus retroactively invalidated.

(2) However, it is difficult to accept such determination by the lower court for the following reasons.

As seen earlier, it is difficult to view that the instant relocation contract was erroneous in the important part of the content thereof, and it was revoked by exercising the right to revoke the instant transfer contract and retroactively lost its validity. Moreover, there is room to view that Defendant New Gyeonggi Tourism ratified to provide the Plaintiff with the instant new track site free of charge pursuant to the instant relocation contract. Accordingly, it is difficult to deem that the Plaintiff bears the obligation to return unjust enrichment due to the possession and use of the instant new track site at Defendant New Gyeonggi Tourism.

(3) Therefore, the lower court erred by exceeding the bounds of the principle of free evaluation of evidence in violation of logical and empirical rules, or by misapprehending the legal doctrine on the revocation and ratification of expression of intent due to mistake, thereby adversely affecting the conclusion of the judgment.

6. Conclusion

Of the judgment of the court below, the following three parts of the judgment of the court below are reversed: (i) the claims for the registration of the establishment of a right of lease, the part of the claims for the registration of the establishment of superficies, the part of the claims for the registration of the establishment of a right of lease, the part of the claims for the confirmation of existence of a debt, and (ii) the part of the claims for the principal lawsuit against Defendant New Gyeonggi Tourism; and (iii) the part against the plaintiff regarding the claims for the return of unjust enrichment with respect to the newly established track site of this case among the claims for the counterclaim by Defendant New Gyeonggi Tourism, are reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion (the grounds for appeal against the money is omitted since it is not necessary to determine the grounds for appeal against the money). The remaining appeals by

Justices Kim Chang-suk (Presiding Justice)