2014Da13471 Claim for the cancellation and recovery of registration of creation of a right to collateral security.

A

B

Seoul High Court Decision 2012Na88169 Decided January 28, 2014

March 30, 2017

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. After finding the facts as indicated in its reasoning based on the evidence adopted, the lower court determined that: (a) at the time of entering into the instant contract and superficies contract, the Plaintiff, the Defendant, and C merely agreed on the establishment of the right to collateral security and superficies with respect to each of the instant real estate owned by the Defendant to lend KRW 500 million to C and secure them; (b) at the time of entering into the instant contract and superficies contract; (c) at the time of entering into the instant contract, the Defendant and C may cancel the instant contract and at any time at the time when C failed to perform the terms and conditions of the contract; and (c) the Plaintiff did not explain or inform the Plaintiff or his agent of all the documents to be submitted to the Defendant to cancel the establishment of the right to collateral security and superficies; and (c) the Plaintiff could not have known or anticipated that the effect of the instant contract and superficies agreement would vary depending on whether the instant contract and superficies agreement were rescinded; and (d) the Plaintiff could not have known or could not have known the remainder of the terms and conditions of the instant contract and the intermediate payment, which were void based on the premise that the Plaintiff could not have been paid any other circumstances.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. As long as the establishment of a disposal document is recognized as authentic, the court shall recognize the existence and content of the declaration of intent in accordance with the language and text stated in the disposal document, unless there is any clear and acceptable counter-proof as to the denial of the contents stated therein. In a dispute over the interpretation of a contract between the parties concerned, where the interpretation of the intent of the parties indicated in the disposal document is at issue, the content of the language and text. A comprehensive consideration of the motive and developments leading up to the agreement, the purpose to be achieved by the agreement, the parties’ genuine intent, etc. should be given in accordance with logical and empirical rules (see, e.g., Supreme Court Decisions 2002Da23482, Jun. 28, 2002; 2014Da8543, Oct. 27, 2016).

B. According to the reasoning of the lower judgment and evidence duly admitted by the lower court, the Defendant: (i) provided each of the instant real estate to F, a real estate broker, for the repayment of approximately KRW 600 million due to husband’s business depression from six months prior to entering into a sales contract on each of the instant real estate; (ii) the Defendant introduced C, as a broker, a place where the Plaintiff will keep the instant real estate for rental car business, and decided to sell each of the instant real estate to C; and (iii) requested C, at the same time as the sales contract, to provide pollution of each of the instant real estate; and (iv) the Defendant agreed upon the terms of the sales contract and mortgage contract on each of the instant real estate through F; and (v) if the instant special agreement becomes null and void, the ownership of each of the instant real estate is not likely to be lost by auction; and (v) the Defendant responded to the instant sales contract and mortgage contract, which was entered into with the Plaintiff’s office, as of the date of termination of the instant superficies contract; and (v) the Plaintiff’s establishment of the instant superficies contract and the instant documents.

C. The legal principles as seen earlier and the following facts revealed: ① the instant mortgage contract and superficies contract were prepared in the office of a certified judicial scrivener for the purpose of concluding a contract; ② the Defendant provided each of the instant real estate as security in advance to the Plaintiff at the request of C, and thus, recognized the invalidity special agreement of this case as a premise for a mortgage contract and superficies contract in order to prevent loss of ownership of each of the instant real estate in a state where the purchase price was not properly received from C; ③ The Plaintiff appears to have failed to properly verify the facts described in the instant special agreement and superficies contract which were unfavorable to himself while entering into a mortgage contract and superficies contract through his agent; ④ Ultimately, considering the fact that the Plaintiff and the Defendant, who are the party to the contract, did not have explicitly or explicitly agreed to the effect that the instant special agreement is not the content of a contract, or it is difficult to find out the circumstances that the agreement was not the content of a contract, it is difficult to view that the instant special agreement and the instant superficies contract cannot be deemed null and void merely as a simple example of the instant special agreement.

D. Nevertheless, the lower court determined that there was no agreement between the Plaintiff and the Defendant with respect to the contents stipulated in the instant special agreement merely based on the reasoning stated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on disposal documents and the interpretation of the intent of the parties without exhausting necessary deliberations, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Kim Jae-sik et al.

Justices Cho Jong-hee

Chief Justice Park Sang-ok