Mistake on the debtor's identity and important part of legal act in the form of a contract for creation of a right to collateral security or guarantee;

In general, when entering into a contract to establish a right to collateral security or a guarantee agreement, an error on whose identity the debtor is is cannot be deemed to be an error on the important part of the expression of intent, but it is merely a mistake on the name of the person who established the right to collateral security or the guarantor, and thus, the debtor borrows the name of the person who deemed the debtor as the debtor, at the time of the contract, even though the above two persons were aware of the fact that the above two persons are not the same, and in special circumstances, it cannot be deemed to be an error on the important part of the juristic act, even though

Article 109 of the Civil Act

[Judgment of the court below]

[Defendant-Appellee] Korea Industrial Bank of Korea

Seoul High Court Decision 85Na688 delivered on January 15, 1986

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

We examine the grounds of appeal.

According to the reasoning of the judgment below, the court below, based on evidence of the plaintiff's non-party 1, who was well known about 10 December 1981 and known the above real estate to the non-party 3's vice president, requested that the non-party 1 corporation purchase the real estate owned by the plaintiff as collateral for the warranty of defects in the non-party 1's export products. The non-party 1 and the above non-party 2's representative director of the non-party 1 should offer the real estate as collateral, and then the debtor should obtain 10,000 won monthly payment for the above real estate for the purpose of the non-party 3's establishment of mortgage agreement and obtain 9's signature and seal on the non-party 1's own real estate and obtain 9's signature and seal on the non-party 3's own mortgage, and then, it is difficult for the above non-party 2 to liquidate the above real estate under the non-party 3's new business registration agreement with the non-party 3 company.

However, in general, when entering into a contract to establish a right to collateral security or a guarantee agreement, the mistake on who the debtor is cannot be deemed as an error on the important part of the expression of intent, but even if so, the person who established the right to collateral security or the debtor merely borrowed the name of the debtor, who is expressed on the contract, and thus, in special circumstances, such as where the plaintiff was aware of the fact that the two persons are not the same, it cannot be deemed as an error on the important part of the juristic act, even if it appears that there was an error on the identity of the person at the time of the contract.

Even according to the facts established by the court below, the plaintiff was introduced through the non-party 1 who was well known to the non-party 2, and the non-party 1 was the vice president, and the non-party 2 provided the real estate in this case on behalf of the non-party company who is the representative director three times or each time and cancelled it, and the plaintiff was ordered to receive 100,000 won per month during the period of providing the collateral. In addition, in establishing the mortgage of this case, the plaintiff did not comply with the above non-party 2's request and the non-party 2's name was also the non-party 3, the above non-party 2's wife (the non-party 3 was the non-party 6's representative, according to the evidence 6-11), and in fact, the above non-party 2 was established for the transaction with the defendant bank. Thus, it is not difficult for the defendant bank and the non-party 2 to deem the above non-party 2 to be a joint guarantor.

Nevertheless, under the aforementioned circumstances, the court below concluded that the debtor of this case was erroneous on the sole basis of the mistake that the debtor was not the above non-party 3 and was erroneous on the part of the juristic act without deliberating on the special circumstances that the plaintiff would not be the person who created the right to collateral security or joint and several surety of this case, and the judgment below affected the conclusion of the judgment because it did not exhaust all necessary deliberations or did not err in the misapprehension of the legal principles as to the mistake in writing, which affected the conclusion of judgment

Therefore, without further proceeding to decide on other grounds of appeal, the judgment below is reversed, and the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating judges.

Justices Lee Byung-su (Presiding Justice)