[1] The method of interpreting the intent of the parties expressed in the disposal document

[2] Purport of the provision of Article 61 of the Commercial Act, and whether a merchant's right to claim remuneration can be acknowledged even if there is a special agreement between the parties to exclude the provision (negative)

[3] The case holding that a special contract which excludes the merchant's right to claim the remuneration under Article 61 of the Commercial Act is a special contract for the successful payment of the service contract

[1] Article 105 of the Civil Code / [2] Article 61 of the Commercial Code / [3] Article 105 of the Civil Code, Article 61 of the Commercial Code

[1] Supreme Court Decision 2002Da23482 decided Jun. 28, 2002 (Gong2002Ha, 1816), Supreme Court Decision 2000Da5336, 5343 decided Jan. 24, 2003 (Gong2003Sang, 677), Supreme Court Decision 2004Da67264, 67271 decided May 13, 2005 (Gong2005Sang, 947), Supreme Court Decision 2004Da6065 decided May 27, 2005 (Gong2005Ha, 1031)

Dongbu Securities Co., Ltd. (Law Firm Han-chul, Attorneys Kim Si-sub et al., Counsel for the defendant-appellant)

Defendant Co., Ltd. (Law Firm Dadam, Attorneys Kim Yong-jin, Counsel for defendant-appellant)

Seoul High Court Decision 2005Na20479 Delivered on January 13, 2006

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Seoul High Court. The Plaintiff’s appeal is dismissed.

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

1. Plaintiff’s ground of appeal

If the authenticity of a disposal document is recognized, the court shall, in principle, recognize the existence and content of the declaration of intent in accordance with the language and text stated in the disposal document, unless there is any clear and acceptable reflective evidence that denies the contents of the statement. In the event that there is any difference between the parties about the interpretation of a contract and the interpretation of the intent of the parties expressed in the disposal document is at issue, the court shall reasonably interpret it in accordance with logical and empirical rules by comprehensively taking into account the contents of the text, the motive and background of such agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. (see Supreme Court Decision 2004Da6065, May 27,

The court below acknowledged the facts based on the evidence adopted in its decision, and found it reasonable to interpret the so-called "shared Remuneration Agreement" that occurs only on the condition that the plaintiff, who was determined in the information about investors in running a securities business, discover and attracts new investors for the defendant, and actually led to investment. As a result, even if the defendant had contributed to the success of the plaintiff by providing various services required in the process of offering capital increase, the finding and attracting of the non-party, the investor, etc., was conducted by the defendant, and not by the plaintiff. Further, even if the investment was made by the defendant by the investment selected by the defendant, there is no evidence to deem that the defendant was treated as having failed to meet the conditions for claiming the remuneration under the service contract of this case, and therefore, the court below rejected the plaintiff's claim for the payment of the remuneration amount of KRW 200 million under the service contract of this case, in light of the above legal principles and records, and there is no violation of the rules of experience or incomplete deliberation, contrary to the plaintiff's allegation in the grounds of appeal or the appeal.

2. As to the Defendant’s ground of appeal on the misapprehension of the legal principle as to the merchant’s right to claim remuneration under Article 61 of the Commercial Act

The court below determined that, in light of all the circumstances acknowledged by the court below, it is reasonable to determine ex officio a reasonable amount of remuneration for the plaintiff's business affairs on behalf of the defendant in consideration of the following: (a) it is difficult to interpret that the purpose of the contract of this case is to exclude the plaintiff from filing a claim for remuneration in advance pursuant to other legal grounds; and (b) as long as the plaintiff, a merchant, provided various services within the plaintiff's scope of business for the defendant in the course of attracting investment; (c) health class; (d) the amount of remuneration to be paid by the defendant to the plaintiff; (e) the content and expertise of the advisory service provided by the plaintiff; (e) the period for providing services; (e) the degree of efforts made by the plaintiff; (e) the amount of the plaintiff's investment contributed to the plaintiff; and (e) the amount of remuneration paid by the defendant to the plaintiff; and (e) the amount of ordinary commercial transactions, the amount of remuneration for the plaintiff's business affairs on behalf of the defendant is determined as 60 million won; and (e) the amount of success fee of 200 million won.

However, this decision of the court below is not acceptable.

Article 61 of the Commercial Act provides that when a merchant commits an act on behalf of another person within the scope of his/her business, he/she may claim reasonable remuneration therefor. This is different from the provisions of Articles 686 and 701 of the Civil Act that, even if an act on behalf of another person may not be claimed unless otherwise stipulated, the act on behalf of the other person shall aim at profit-making, and when the act on behalf of the merchant has provided efforts for others within the scope of his/her business, he/she shall expect the remuneration, and the payment of the compensation for the benefit accrued therefrom shall be deemed to be consistent with the common sense of commercial transactions.

However, as seen earlier, if an agreement on the payment of fees under the instant service agreement was reached as a successful fee premised on the fulfillment of a certain condition, it is reasonable to interpret that a separate fee cannot be claimed as long as the plaintiff is unable to claim the contingent fee because the said condition is not fulfilled, in light of the opposite interpretation of the said agreement, and therefore, it is reasonable to deem such contingent fee agreement between the parties as a special agreement excluding the merchant's right to claim the remuneration under Article 61 of the Commercial Act. However, the lower court determined otherwise that the contingent fee agreement does not purport to exclude the merchant's right to claim the remuneration. In so doing, the lower court erred by misapprehending the legal doctrine on the merchant's right to claim the remuneration under Article 61 of the Commercial Act, which affected the conclusion of the judgment. The Defendant's appeal pointing this out has merit

3. Conclusion

Therefore, without examining the remaining grounds of appeal by the defendant, the part against the defendant among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)