[1] The meaning of conditions and the elements of the establishment as an accessory to a juristic act

[2] The case holding that the phrase "to pay part of the embezzlement and be taken in advance" does not fall under the conditions of each letter

[1] The condition is a subsidiary of a juristic act which depends on the formation or extinguishment of the effect of a juristic act in the future on the gender of an uncertain fact, and constitutes a whole content of the declaration of intent constituting the juristic act in question. Thus, the intent to attach conditions in accordance with the general principle of declaration of intent, namely, the intent to attach conditions, that is, it is necessary to indicate them, and even if the condition is not indicated outside, it is merely the motive of the juristic act and it does not constitute a subsidiary of the juristic act.

[2] The case holding that the agreement that Gap shall pay Eul part of the embezzlement amount of Byung's embezzlement amount to Eul is erroneous and that Eul shall repay Eul's unjust enrichment return or part of Eul's liability for damages to Byung, and the court below's internal decision making such an agreement does not know that Byung actually was subject to punishment in addition to the motive that Byung was not subject to punishment, the above agreement itself was null and void, but it cannot be readily concluded that Eul was made conditional agreement on Byung's preemptive action, and in light of all the circumstances such as the contents of each written agreement and the situation at the time of its preparation, and the other party's intent, it cannot be viewed that the agreement itself is attached to the above agreement, and the meaning that the effect of the agreement itself shall naturally be extinguished only by the fact that Eul's regular accusation or punishment is a punishment of Eul, and on the other hand, it seems that Byung's repayment of each of the above agreements is merely a cooperation to enable Byung to receive Byung's prior action upon the performance of the agreement with Byung.

[1] Article 147 of the Civil Code / [2] Article 147 of the Civil Code

Park Ho-hun

Defendant

Seoul High Court Decision 2002Na20362 delivered on January 22, 2003

The judgment below is reversed and the case is remanded to Seoul High Court.

1. The court below found that the defendant's joint defendant 2 was not guilty of the above 10-year imprisonment with prison labor from January 1, 1991 to February 17, 195, the defendant 10-year joint defendant 2 was not guilty of the above 10-year imprisonment with prison labor, 30-year imprisonment with prison labor, 10-year imprisonment with prison labor, and 10-year imprisonment with prison labor from February 24, 1995. The defendant was found to have been guilty of 10-year imprisonment with prison labor, 30-year imprisonment with prison labor, 40-year imprisonment with prison labor, 15-year imprisonment with prison labor, 30-year imprisonment with prison labor, and 10-year imprisonment with prison labor, and 100-year imprisonment with prison labor, 300-year imprisonment with prison labor, 400-year imprisonment with prison labor, and 160-year imprisonment with prison labor for each of the above 10-year joint defendants.

In full view of the circumstances, before and after the conclusion of the instant agreement, and the content and purpose of the parties’ expression of intent, the lower court determined that: (a) inasmuch as the Plaintiff’s payment of KRW 70 million to the Plaintiff pursuant to the instant agreement was exempt from criminal punishment by failing to file a complaint against the co-defendants of the first instance trial; or (b) mitigation of criminal punishment for co-defendants of the first instance trial by paying at least part of embezzlement pursuant to the instant agreement was the ultimate purpose of the instant agreement; and (c) even if the Plaintiff were to receive partial damages from the Defendant, instead of the co-defendants of the first instance trial without financial ability, the Defendant’s payment of KRW 70,000,00,00 to the co-defendants of the first instance trial, the Defendant’s provision that the Defendant would be subject to criminal punishment for the above co-defendants of the first instance court’s first instance court’s first instance court’s first instance court’s first instance court’s first instance court’s punishment or mitigation of criminal punishment pursuant to the agreement, the Plaintiff’s joint Defendant’s first instance court’s first instance judgment’s first instance judgment’s conviction.

2. However, we cannot agree with the above determination by the court below for the following reasons.

(1) The condition is a subsidiary of a juristic act which depends on the nature and nature of a future uncertain fact, and constitutes a whole content of the declaration of intent constituting the juristic act in question. Therefore, the condition is required to attach conditions according to the general principle of declaration of intent, that is, the intent to attach them, and its indication. Even if the condition is not indicated outside, it is merely the motive of the juristic act, and it does not constitute a subsidiary of the juristic act.

(2) According to the records, the defendant prepared on February 25, 1995 with the plaintiff on each of the above 3-year testimony (Evidence A 2) that he would have been found to have been unable to file a criminal complaint with the defendant 1, 15,206,618 that he embezzled the amount of his co-defendant 1,50,000 won and his retirement pay to the defendant 5,000 won and received the first instance court's order. The plaintiff's joint defendant 1 and the defendant 2 failed to file a criminal complaint with the court of first instance on each of the above facts that he was found to have been found to have been unable to file a criminal complaint with the defendant 1,40,000 won, and the defendant's joint defendant 1 and the defendant 2 failed to file a criminal complaint with the court of first instance on each of the above facts that he was found to have been found to have been found to have been guilty of the above 9-year co-defendant 1's embezzlement of the defendant 1 and the second instance court's order.

(3) If there are circumstances, the agreement in this case that the defendant paid KRW 70 million to the plaintiff is purported that the co-defendants of the first instance court will pay part of the unjust enrichment return or damages liability he bears to the plaintiff as the omission of the co-defendants of the first instance court. In addition to the motive that the co-defendants of the first instance court would not be punished, if the co-defendants of the first instance court would actually be punished, it cannot be readily concluded that the agreement in this case was null and void. However, in light of all the circumstances such as the contents of the agreement in this case as mentioned above and the situation at the time of its preparation, and the intent of the plaintiff, etc., it cannot be deemed that the agreement in this case itself goes against the agreement in this case as a matter of course, and that the agreement in this case would be null and void as a matter of course, even if the plaintiff would have been subject to criminal punishment on the ground that the agreement in this case was actually implemented by the co-defendants of the first instance court. Rather, it cannot be deemed that the agreement in this case's co-defendant will be justified for the plaintiff to be jointly defendant of this case.

(4) Nevertheless, the court below concluded that the agreement of this case was conditional legal act and rejected the Plaintiff’s claim of this case seeking its implementation solely on the grounds as seen earlier. In so doing, there is no error of law by misunderstanding the interpretation of the agreement of this case and misunderstanding the legal principles as to the nature of the condition, thereby affecting the conclusion of the judgment. The ground of appeal assigning this error is

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)