[1] Whether a mistake can be deemed as an error of an important part of the content of a legal act in a case where the person who made a mistake did not have any economic disadvantage (negative)

[2] Where a notarial deed was signed and sealed as a joint guarantor with the intention to guarantee the principal debtor's obligation to repay the borrowed amount, but such notarial deed was a quasi-loan contract for consumption for the existing indemnity of the principal debtor, whether the mistake of the guarantor is an error in the important part of the joint and several liability contract (negative)

[1] In order for an error to be deemed as an important part of the contents of a juristic act, the difference between the expression and the doctor should be objectively apparent in view of the purpose pursued by the person who made the expression, and if the person who made the expression would not suffer from an inhuman economic disadvantage, it shall not be deemed as an error in the important part of the contents of the juristic act.

[2] Where a notarial deed was signed and sealed as a joint guarantor in the notarial deed with the intent to guarantee the principal debtor's obligation to return the borrowed amount, but such notarial deed was a quasi-loan contract for consumption with respect to the principal debtor's existing obligation for indemnity, etc., since the legal effect of a loan agreement for consumption and a quasi-loan contract for consumption is identical, the notarial deed cannot be deemed as a document that generates legal effect different from the intent of a joint guarantor, and thus, the indication and the disagreement between the intent is not objectively obvious. In addition, as long as the principal debtor had an intent to guarantee the obligation to return the borrowed amount to the creditor, so long as the principal debtor had an intention to guarantee the obligation to repay the borrowed

[1] Article 109 of the Civil Act / [2] Articles 109, 428, 598, and 605 of the Civil Act

[1] Supreme Court Decision 98Da47924 delivered on February 23, 1999 (Gong199Sang, 545)

Plaintiff (Attorney Song-young et al., Counsel for the plaintiff-appellant)

Defendant

Daejeon High Court Decision 2005Na10010 decided June 8, 2006

The judgment of the court below is reversed, and the case is remanded to Daejeon High Court.

The grounds of appeal are examined.

In a case where there is an error in the important part of the contents of a juristic act, an expression of intent may be cancelled. In order that an error constitutes an important part of the contents of a juristic act, a reasonable determination of the content of the juristic act in consideration of the purpose pursued by the arbitr, and the discrepancy between the arbitr and the intent should be objectively apparent. If the arbitr does not suffer any economic disadvantage due to such a mistake, it cannot be deemed an error in the part of the contents of the juristic act (see Supreme Court Decision 98Da47924 delivered on February 23,

The court below acknowledged the facts as stated in its reasoning after comprehensively taking account of the evidence adopted. The plaintiff signed and sealed the notarial deed in this case as a joint guarantor with the intention of guaranteeing the obligation to return KRW 37.5 million borrowed from the defendant, but contrary to the plaintiff's intent, the notarial deed in this case was a quasi-loan contract for consumption with respect to the non-party's existing indemnity obligation against the defendant, and thus, the plaintiff's signature and sealing act was caused by mistake, and such mistake constitutes an error as to the important part of the juristic act

However, since the legal effect of a loan for consumption and a quasi-loan for consumption are identical to that of a loan for consumption, even if the Plaintiff signed and sealed a notarial deed without reading or properly understanding it, such notarial deed cannot be deemed as a document that generates legal effect different from the Plaintiff’s intent, and thus, it does not correspond to objective cases where disagreements with the indication and intent, and as long as the Plaintiff had an intent to jointly and severally guarantee the obligation to refund borrowed money of KRW 37.5 million owed by the Nonparty to the Defendant, then even if the loan was not delivered to the Nonparty only after the completion of the notarial deed, and the Nonparty caused any mistake as to the fact that the loan was made for the purpose of a loan for consumption, not for the loan to the Defendant, it does not mean that the Plaintiff suffered any economic disadvantage or would suffer any disadvantage in the future, and thus, such mistake cannot be deemed as a mistake as to the important part of the joint and several guarantee contract of this case (such mistake constitutes so-called motive mistake, and even if the Plaintiff may be deemed as a joint and several surety agreement of this case.)

Therefore, the judgment of the court below which accepted the plaintiff's claim for revocation of joint and several sureties by mistake and rejected compulsory execution by notarial deed of this case is erroneous in the misapprehension of legal principles as to revocation of declaration of intention due to mistake, which affected the conclusion of the judgment. The ground of

Therefore, without examining the remaining grounds of appeal by the Defendant, 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 Kim Hwang-sik (Presiding Justice)