[1] Court's explanation and cadastral duty as to legal matters

[2] The case reversing the judgment of the court below which rejected the claim on the ground that there is insufficient proof after concluding that the legal basis of the claim for damages is a contractual liability or a tort liability without exercising the right to know and held the claim for tort

[1] Article 136(4) of the Civil Procedure Act provides that “The court shall give the parties an opportunity to state their opinions regarding legal matters which are clearly recognized as being the parties to the case.” Thus, in a case where there is a matter of law that is clearly unreasonable due to the negligence or misunderstanding of the parties, or where there is any inconsistency or uncertainty in view of the parties’ arguments from a legal point of view, the court shall actively exercise the right to explain and give the parties an opportunity to state their opinions. If the parties neglected to state their opinions, the court

[2] The case reversing the judgment of the court below which rejected the claim on the ground that the legal ground for the claim for damages is not sufficient proof, since the legal ground for the claim for damages constitutes a contract liability or tort liability, the burden of proof for the requisite facts varies depending on whether it constitutes a contract liability. Thus, if the parties do not specify it, the parties are given an opportunity to present their opinions and give the parties an opportunity to clearly and clearly explain their arguments, but it is not sufficient to establish the legal ground for the claim for damages without taking such measures and hold the legal ground for

[1] Article 126 (4) (see current Article 136 (4)) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) / [2] Article 126 (4) (see current Article 136 (4)) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002), Articles 390 and 750 of the Civil Act, Article 288 of the Civil Procedure Act

[1] Supreme Court Decision 2001Da11055 Decided January 25, 2002 (Gong2002Sang, 559) Supreme Court Decision 2002Da41435 Decided January 10, 2003 (Gong2003Sang, 621) Supreme Court Decision 2004Da37676 Decided November 10, 2005 (Gong2005Ha, 1950)

Plaintiff

Defendant 1 and one other

Busan District Court Decision 2008Na15299 Decided May 22, 2009

The part of the lower judgment against Defendant 1 Company is reversed, and that part of the case is remanded to Busan District Court Panel Division. The appeal against Defendant 2 is dismissed. The costs of appeal against Defendant 2 are assessed against the Plaintiff.

1. Summary of the judgment of the court below

A. In full view of the evidence, the court below acknowledged that the Plaintiff entered into a general telephone subscription contract with Defendant 1 Co., Ltd. and used 051-(hereinafter phone number 1 omitted) telephone and 051-(hereinafter phone number 2 omitted) telephone, Defendant 2 used as the head of the fare management team at the Seosan Branch Co., Ltd., Defendant 1 Co., Ltd., Defendant 1 Co., Ltd., from May 2051-(hereinafter phone number 2 omitted) telephone rate to August 25, 2001 from May 2001 (based on the payment date; hereinafter the same shall apply) to August 2001, on the ground that the Plaintiff’s balance of the Plaintiff’s automatic payment account at the National Bank of Korea falls short of the fee amount, the above phone amount was terminated ex officio on August 13, 2001, and Defendant 1 Co., Ltd. was discharged from the above phone number 2051-100 to June 31, 2013.

B. In addition, the court below affirmed the judgment of the court of first instance which dismissed the Plaintiff’s claim on the ground that there is insufficient evidence to prove that the Defendants committed a tort, such as unfairly cancelling the above phone by official authority, on the ground that, “the Defendants terminated the above phone without any demand or notification procedure and set off the charges, the Defendants are jointly and severally liable to compensate the Plaintiff for the damages.”

2. Judgment of the Supreme Court

A. The part of the claim against the defendant 1 corporation

(1) Article 136(4) of the Civil Procedure Act provides that “The court shall give the parties an opportunity to state their opinions regarding legal matters which are clearly recognized as being the parties to the case.” Thus, in a case where there is a matter of law that is clearly unreasonable due to the negligence or misunderstanding of the parties, or contradictory or unclear from a legal point of view of the parties’ allegations, the court shall actively exercise the right to explain and give the parties an opportunity to state their opinions, and in a case where the parties neglected to state their opinions, the court is unlawful as it fails to perform its duty to state their opinions (see Supreme Court Decision 2002Da41435 delivered on January 10, 203)

(2) In this case, the key legal requirements, which serve as the issue of whether Defendant 1 is liable for damages, are whether the Plaintiff was in arrears or not, and whether Defendant 1 corporation had gone through the performance demand procedure prior to termination. However, the burden of proving the above requirements may vary depending on whether the legal basis for the claim for damages is a contractual liability or constitutes tort liability. In other words, when constituting a contract liability, the burden of proving the above requirements (the burden of proving that the Plaintiff was in arrears or Defendant 1 corporation’s demand for performance) is the burden of Defendant 1 corporation. However, when constituting tort liability, the burden of proving that the burden of proof (the burden of proving that the Plaintiff did not delay the telephone fee, and that Defendant 1 corporation did not demand the performance demand) is the burden of the Plaintiff according to general principles. Accordingly, how to grasp the legal nature of the claim for damages of this case can vary depending on how the lawsuit can be seen as a significant legal matter that may vary.

According to the records, the plaintiff at the first instance court and the lower court revealed that it was not clear whether the claim for damages in this case is liable for contractual liability or tort liability. This does not mean that the plaintiff is not clearly able to understand the legal effects of the burden of proof due to the lack of care or legal knowledge, or that the assertion is unclear or incomplete from a legal point of view. Therefore, the lower court should have given the plaintiff an opportunity to state his opinion by indicating the above and giving the plaintiff an opportunity to state his opinion clearly.

Nevertheless, the court below did not take such measures and concluded that the legal basis of the plaintiff's claim for damages of this case is tort liability (in this case, the burden of proof is extremely unfavorable to the plaintiff in that the plaintiff bears the burden of proof) and rejected the plaintiff's claim due to lack of proof. It is erroneous that this is not properly exercised the right of explanation and did not provide the parties with an opportunity to state their opinions on the legal matters, which affected the conclusion of the judgment.

(3) Meanwhile, the Plaintiff asserts that “The phone number 051- (the phone number 2 omitted) was in the state of temporary suspension from use for six months from February 12, 2001 to August 12, 2001, and thus, the telephone fee itself could not be imposed during that period.” The Plaintiff’s assertion appears to have a group of objections based on the evidence Nos. 6 and 9. Thus, the lower court also pointed out that it is necessary to determine the facts by further deliberation.

In addition, the Plaintiff asserted to the effect that “If there was a shortage of balance on August 25, 200, the balance was sufficient before and after that shortage, it would be improper to withdraw the fee by means of additional withdrawals or partial withdrawals, but not taking such measures.” However, the lower court rejected the said assertion by recognizing that “at the time, it was before the introduction of the additional withdrawals or partial withdrawals system.” However, according to the statement No. 10 and the party’s personal examination as to Defendant 2, the additional withdrawal system was expected to have been implemented from August 2005, but according to the party’s personal examination as to Defendant 2, the additional withdrawal system was already implemented since September 200, and thus, the lower court also pointed out that it is necessary to determine the facts by further deliberation.

B. Part of the claim against the defendant 2

As seen earlier, the lower court, as regards the part of the claim against Defendant 2, may be deemed to have failed to exercise the right to ask for a seat properly. However, as Defendant 2 does not have any contractual relationship with the Plaintiff, there is no room for the contractual liability with respect to Defendant 2. Defendant 2 is merely the head of the fare management team at the Seosan Branch Co., Ltd., Ltd., and there is no evidence to acknowledge that Defendant 2 was involved in the process of ex officio termination of each of the instant calls, and thus, cannot be held liable for tort against Defendant

Ultimately, even if the above error was found in the lower court’s measures, such error did not affect the conclusion of the judgment. The Plaintiff’s appeal on this part is without merit.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant 1 corporation is reversed, and that part of the case is remanded to the court below for a new trial and determination, and the appeal against Defendant 2 is dismissed, and the costs of appeal against Defendant 2 are to be borne by the plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)