2014Da224073 Objection

A

B

Daejeon High Court Decision 2013Na11971 Decided August 27, 2014

April 15, 2016

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

The grounds of appeal are examined.

1. The following facts are revealed according to the judgment of the court below and the judgment of the court of first instance cited by the court below.

A. The plaintiff is a male who was married in 1976 and has a legal spouse, and has maintained the marital relationship with the defendant since before 1999, and has been continuously given money as a living expense to the defendant since 2000 every month.

B. On December 16, 2009, the Plaintiff paid KRW 100,000 to the Defendant on December 16, 2009, and the Plaintiff paid KRW 2 million to the Defendant on the last day of every five years from January 2010 to December 2014, and even if they are hedging each other before December 2014, without any of the above conditions, if they continue to exist after five years, the Plaintiff made an agreement to the effect that “the Plaintiff paid KRW 2 million to the Defendant on the last day of each month until the hedge” (hereinafter referred to as “instant agreement”) and the Defendant paid KRW 100,000 to the Defendant immediately on that day.

C. On December 16, 2009, the Plaintiff and the Defendant entrusted the preparation of a notarial deed stating the following (hereinafter “instant notarial deed”) to the effect: “The Plaintiff recognized that the obligation of the borrowed money borrowed from the Defendant was KRW 120 million, and that the said borrowed money is to be repaid in installments at the end of each month from December 31, 2009 to November 30, 2014, 60,000 won each time from November 30, 2014.”

2. Based on the above factual basis, the Plaintiff asserted that the agreement in this case and the preparation of the notarial deed in this case were null and void as it constitutes a juristic act contrary to social order under Article 103 of the Civil Act due to the act of bearing the debt for maintaining the overlapping relationship. However, in full view of the following circumstances, the lower court rejected the Plaintiff’s assertion on the following grounds: (a) it is difficult to confirm that the Plaintiff had to assume the debt under the agreement in this case and the notarial deed on the condition that it would maintain the overlapping relationship with the Defendant

A. If the Plaintiff’s assertion was maintained, even though the overlapping relationship between the Plaintiff and the Defendant was maintained, the Plaintiff immediately agreed to pay KRW 100 million to the Defendant on the condition that the overlapping relationship was maintained at around December 16, 2009, and to pay KRW 200,000 per month in the name of living expenses for the next five years, and paid a large amount of money that is actually KRW 100,000 won on the same day. However, it is difficult to obtain the reasons therefor.

B. If the agreement of this case is made on the condition of maintaining the counter-espionage relationship as the plaintiff's assertion, it is common to conclude that the plaintiff would suspend the payment of living expenses or refund money already paid if the relationship is severed due to the reasons attributable to the defendant. However, the agreement of this case does not provide such an agreement, and rather, the plaintiff would pay living expenses even if the plaintiff is hedging with the defendant within a five-year period as seen earlier. As alleged by the plaintiff, there is no ground to recognize that the relationship with the defendant continues for one year after the agreement of this case, while the testimony of the court below witness D, which corresponds to the defendant's argument that there was no fact that the plaintiff did not reach after the agreement of this case as a result of resolving the relationship with the plaintiff, cannot be found materials to deny its credibility.

3. However, it is difficult to accept the above judgment of the court below for the following reasons.

Where the content of an agreement agreed upon by the parties to a contract is written in writing as a disposal document, and the objective meaning of the language is clear, barring any special circumstance, the existence and content of the expression of intent should be recognized (see, e.g., Supreme Court Decision 2012Da64253, Oct. 15, 2015).

According to the facts acknowledged by the court below, the contents of the agreement of this case are that "the plaintiff shall pay to the defendant, the amount of KRW 100 million on December 16, 2009, and KRW 200,000 on the last day of every five years from January 2010 to December 2014, and even if they are hedged before December 2014, the above living expenses shall be paid without any conditions, and if they continue to exist after five years, the amount of KRW 2,00,000 on the last day of each month shall be paid as living expenses until they are hedged."

If we understand the language and text of the instant agreement as it is, the Plaintiff shall pay monthly living expenses to the Defendant on the premise that the overlapping relationship continues to exist, and even if the overlapping relationship is terminated before December 2014, the Plaintiff shall make an agreement to open a possibility of continuing the overlapping relationship after December 2014, and if so, it shall pay monthly living expenses after December 2014. This agreement is concluded that the Plaintiff and the Defendant shall not immediately cut off the overlapping relationship and shall not pay the living expenses for at least five years thereafter. Therefore, it is reasonable to view that the agreement is premised on the premise that the agreement will continue to be paid for the period of five years after December 16, 209 on the premise that it would be difficult to maintain the overlapping relationship with the Plaintiff and the Defendant, as a whole, while maintaining the overlapping relationship in light of the language and text of the instant agreement, it is reasonable to deem that the agreement would have continued to pay the entire monthly living expenses to the Defendant, such as the Plaintiff and the Defendant’s family members, for the reason that it would be difficult to reach the agreement.

C. Nevertheless, the court below determined that the agreement in this case does not constitute a juristic act against social order on the sole basis of the aforementioned circumstances. In so doing, the court below erred by violating logical and empirical rules and by misapprehending the legal principles on the interpretation of juristic act, thereby adversely affecting the conclusion of the judgment.

4. Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 In-bok

Justices Park Jae-hee in charge

Justices Park Young-young

Justices Kim Jong-il