(a) The case holding that a constructive confession has been established in the appellate court;

(b) Obligation of the presiding judge of the fact-finding court;

A. In the first instance trial, if the defendant who lost the plaintiff's constructive confession because he did not clearly dispute the plaintiff's assertion clearly, only sought a judgment of dismissing the plaintiff's claim, but did not state any reply as to the facts alleged by the plaintiff as the cause of the claim, the appellate court also held that the confession is established, unless it is recognized that the plaintiff did not state any reply.

B. Although the presiding judge of the fact-finding court is not required to urge the parties with the burden of proof in all cases where the parties have knowledge of the facts in dispute between the parties, if the parties have not been proven due to the absence of proof, negligence, or misunderstanding in light of the degree of the lawsuit, if the parties concerned who are not a legal expert do the lawsuit, he/she shall not be determined by the principle of the burden of proof, but shall not be negligent in the efforts to realize specific justice by properly exercising the right of explanation through the proper exercise of the right of explanation, such as urging the parties to prove, and if any documentary evidence corresponding to the facts alleged by the parties has been submitted, the parties should be urged to prove the authenticity of the alleged facts or documentary evidence.

A. Article 139 of the Civil Procedure Act

A. Supreme Court Decision 428Hun-Ga59 delivered on July 21, 1955, 4290Hun-Ga147 delivered on October 14, 1957 B. 68Da470 delivered on May 27, 1968, 86Meu67 delivered on November 25, 1986

[Judgment of the court below]

Defendant 1 and five others

Cheongju District Court Decision 88Na1111 delivered on January 18, 1989

The judgment of the court below is reversed.

The case shall be remanded to the Cheongju District Court Panel Division.

We examine the grounds of appeal by the Plaintiff’s attorney.

1. The record reveals that the instant lawsuit was in progress as follows.

On January 26, 1957, the plaintiff purchased the land of this case (1,831 square meters before [1,831 square meters before [2]] on April 24, 1965, where the registration of preservation of ownership was not made jointly with the non-party 1 on the ground of claim. The non-party 1 made a title trust as to the part specified as the plaintiff's share by conducting the registration of preservation of ownership in the name of non-party 1, and the non-party 3 sold only the part purchased by specifying his location to the non-party 4, and the non-party 3 and the non-party 4 did not submit the plaintiff's appeal to the non-party 1 on the whole land of this case, and the non-party 3 and the non-party 4 did not appear in the court of first instance on the grounds of non-party 4's reply that "the plaintiff did not present the plaintiff's claim to the non-party 1 and the non-party 3 on the grounds of appeal that they did not present the plaintiff's claim for cancellation of title trust."

On the other hand, the plaintiff himself/herself submitted documentary evidence, such as Gap evidence 1 (a land sales contract), Gap evidence 2-1, 2-2 (a copy), Gap evidence 3-1, 2 (a copy), Gap evidence 4 (a survey result), Gap evidence 5 (a land register), Gap evidence 6 (a notification), etc. at the second pleading date, and submitted documentary evidence, such as Gap evidence 7 (a confirmation document of non-party 1), Gap evidence 8 (a confirmation document of non-party 3), and Gap evidence 9 (a confirmation document), etc. at the first pleading date of the court below (other evidence is not submitted), and the defendants responded to the establishment of Gap evidence 7 through 9 as a site, and the court below dismissed the plaintiff's claim on the ground that there is no evidence to acknowledge the trust status of non-party 3 and non-party 4 as the trustee of non-party 1 and non-party 3.

2. In the first instance court where the defendant who lost the constructive confession because he did not clearly dispute the plaintiff's assertion clearly, the appellate court only sought a judgment dismissing the plaintiff's claim, and did not state any reply as to the facts alleged by the plaintiff as the cause of the claim, the appellate court shall be deemed to have established an constructive confession, unless it is acknowledged that the facts alleged by the plaintiff were proved by the whole purport of the pleading (see, e.g., Supreme Court Decision 428Hun-Ma59, Jul. 21, 1955; Supreme Court Decision 4290Hun-Ma147, Oct. 14, 1957). However, the appellate court dismissed the plaintiff's claim on the ground that there was no evidence to acknowledge part of the facts alleged by the plaintiff as the cause of the claim without clarifying whether or not the court below acknowledged the facts alleged by the plaintiff as the cause of the claim. Thus, the court below erred by misapprehending the legal principles on constructive confession under Article 139 of the Civil Procedure Act.

3. In addition, considering the contents of evidence Nos. 7 and 8, it is not clear that Nonparty 1 and Nonparty 3 did not sell to Nonparty 3 only the part he purchased by specifying his location, excluding the part specified as the Plaintiff’s share among the land in this case. Thus, the court below should have exercised the right to ask the Plaintiff to prove the authenticity of the above documentary evidence, which is the only evidence for the Plaintiff’s assertion or its assertion. However, the court below dismissed the Plaintiff’s claim on the ground that the Plaintiff did not take such measures and there was no proof as to this point. Thus, the court below cannot be deemed to have committed an unlawful act due to neglecting the exercise of the right to request a seat (see, e.g., Supreme Court Decisions 86Meu67, Nov. 25, 1986; 68Da470, May 27, 1968).

Of course, the presiding judge of the fact-finding court shall not require the party who has the burden of proof in all cases where the facts in dispute between the parties are proved, but in cases where the party concerned is deemed not to have been proven due to ignorance, negligence, or misunderstanding in light of the degree of the lawsuit, if the party concerned who is not a legal expert conducts the lawsuit, the court shall not render a judgment on the assumption that there is no proof in accordance with the principle of burden of proof, but shall not make a decision on the assumption that there is no proof in accordance with the principle of burden of proof, but shall not neglect the efforts to realize specific justice by appropriately exercising the right of explanation by means of demanding proof, etc., so that the court shall not cause any doubt that is not negligent in exercising the right of explanation in a prompt

4. As seen above, it is clear that the illegality committed by the court below affected the judgment, and it constitutes a ground for reversal under Article 12(2) of the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings, and there are all arguments pointing this out.

Therefore, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-sung (Presiding Justice)