(영문) 대법원 2014.4.10.선고 2013다94190 판결

The Plaintiff’s appeal as to the portion of the loan claim amounting to KRW 10,000,00 between May 26, 2008 and August 22, 2011 against the Selection C is dismissed.

Reasons

The grounds of appeal are examined.

1. Determination on the grounds of appeal relating to the interpretation of the cash custody certificate (No. 1)

A. After finding the facts as stated in its reasoning, the lower court determined that the interest rate of KRW 300 million for the first loan was 16% (monthly 400,000) per annum (one million won per annum) and that the interest rate for KRW 1.3 billion for the first loan was 1.2 billion (two billion won per annum (two billion won per annum; hereinafter “the first loan”). Accordingly, the lower court determined that the interest rate of KRW 16% per annum from October 2, 2003, which is the date on which the first loan was prepared (the cash custody certificate of KRW 1; hereinafter “the cash custody certificate of this case”) was 16% per annum from October 2, 2003, and the Plaintiff and C were 1.3 billion from the remainder of the loan deposit of KRW 1.3 billion in lieu of the loan deposit of KRW 200,000,000,0000,000 per annum 1.3 billion from the loan of KRW 1.3 billion.

B. However, we cannot accept the judgment of the court below for the following reasons.

1) Where a contracting party prepares in writing a disposal document, if the objective meaning of the language is clear, barring any special circumstance, the existence and content of the declaration of intent shall be determined in accordance with the language and text, and where the objective meaning of the language and text is not clearly expressed, it shall be reasonably construed in accordance with logical and empirical rules and social common sense and transaction norms so that it can be in line with the ideology of social justice and equity by comprehensively examining the contents of the language and text, the motive and background leading up to the conclusion of the contract, the purpose and genuine intent to be achieved by the parties to the contract, and transaction practices (see, e.g., Supreme Court Decision 2008Da44368, Jun. 24, 2011).

2) Review of the reasoning of the lower judgment and the record reveals the following facts and circumstances.

① Under Paragraph (3) of the Special Terms and Conditions on the Contracts for the Sale of Real Estate between the Plaintiff and C, 300 million won out of the unpaid purchase price of KRW 400 million shall be repaid at the maturity of two years from the outstanding payment date, but interest shall be paid at the rate of KRW 6 million per month (two million per month). As regards the remaining KRW 100 million, the Plaintiff agreed to reimburse when the residential part of the instant case is ordered to be repaid, and thus, the Plaintiff used the residential part

② As seen above, the unpaid purchase-price KRW 400 million was divided into KRW 300 million and KRW 100 million that did not accrue due to the use of the Plaintiff’s residential part. Of the above KRW 300 million interest accrued to the Plaintiff, KRW 2% of the above KRW 300 million interest accrued each month, the amount of KRW 100 million related to the deposit of the Cho Jae Mutual Savings Bank in the name of C was adjusted through a cash custody certificate (Evidence 6). The remainder of KRW 300 million and KRW 100 million related to the use of the Plaintiff’s residential part were added to KRW 20 million and the amount of KRW 300 million that did not occur separately from the Plaintiff’s use of the instant residential part. ③ In the criminal case proceeding following the Plaintiff’s complaint, the Defendant stated to the effect that the amount of KRW 100 million includes KRW 300 million of the cash custody certificate of this case.

④ In view of the reasoning of the lower judgment, it is unreasonable for the Plaintiff to receive interest from the Defendant as to KRW 100 million related to the use of the instant residential part at the same time before C sells the instant real estate to F, etc., as seen in the lower judgment.

6) There is sufficient room to view that the expression “free residence” stated in the instant cash custody certificate is written on the purport that the Plaintiff and the Defendant would not pay monthly rent in light of the fact that the Plaintiff and the Defendant are not legal experts.

6) As seen in the judgment below, prior to the preparation of the cash custody certificate of this case, the interest rate of KRW 300 million was 2% per month (6 million) from the special contract terms between the Plaintiff and C, and the interest rate of KRW 100 million from the loan certificate (Evidence (Evidence (Evidence (Evidence (No. 2)) for the second loan after the preparation of the cash custody certificate of this case was 2% per month, and it would be agreed to apply the interest rate of KRW 16% per annum or 12% per annum only from the cash custody certificate of this case prepared between them.

3) If the Plaintiff and the Defendant comprehensively consider and reasonably interpret the motive and circumstance leading up to the preparation of the cash custody certificate of this case through the cash custody certificate of this case, the true intent, and the cash custody certificate of this case, which can be known through the above facts and circumstances, the cash custody certificate of this case should be deemed to have included KRW 100 million, which is similar to the lease deposit by the Plaintiff during the period of KRW 300,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000 won, was 2 billion,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000 won.

2. Determination ex officio as to whether the appeal on the third part of the loan claim against C is lawful

In a case where the defendant appealed against the judgment of the court of first instance that partially dismissed the plaintiff's claim, but the plaintiff did not appeal or incidental appeal, the part against the plaintiff in the judgment of first instance was transferred to the appellate court due to the defendant's appeal but was excluded from the scope of the judgment of appellate court. Therefore, if the appellate court partly accepted the defendant's appeal and partly revoked the part against the defendant in the judgment of first instance and dismissed the plaintiff's claim against the defendant in the judgment of first instance, it is limited to the part against the defendant in the judgment of first instance, and this part of the judgment against the plaintiff in the judgment of first instance cannot be the object of the plaintiff's appeal

The appeal on the portion that is not yet filed shall be dismissed as it is unlawful (see, e.g., Supreme Court Decision 9Da5357, May 22, 1998).

According to the records, with respect to the third loan incurred between May 26, 2008 and August 22, 2011, the Plaintiff claimed payment of KRW 110,000,000 as well as damages for delay against the Defendant and C jointly. The first instance court accepted the Plaintiff’s claim against the Defendant and rendered a judgment dismissing the claim against C. The Defendant appealed against the first instance judgment, but the Plaintiff did not appeal.

Therefore, the appeal on the third claim against the plaintiff C is unlawful, since it is against the part of the court below's failure to render a judgment, and it cannot be the object of appeal.

3. Conclusion

Therefore, the part of the judgment below against the plaintiff is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The third claim against the plaintiff C is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.