[1] The meaning and requirements for the rescission or rescission of a contract

[2] Whether the termination of a sales contract without a reinstatement agreement constitutes a precedent in light of the empirical rule (affirmative)

[3] In a case where an agreement is acknowledged differently from the contents of the disposal document, whether the principle of free evaluation of evidence is applied (affirmative)

[1] Articles 543 and 548 of the Civil Act, Article 202 of the Civil Procedure Act / [2] Articles 543 and 548 of the Civil Act, Article 202 of the Civil Procedure Act / [3] Article 105 of the Civil Act, Article 202 of the Civil Procedure Act

[1] [2] Supreme Court Decision 92Da4130, 4147 delivered on June 23, 1992 (Gong1992, 2252) Supreme Court Decision 94Da17093 delivered on September 13, 1994 (Gong1994Ha, 2640) / [1] Supreme Court Decision 98Da17602 delivered on August 21, 1998 (Gong1998Ha, 2296) / [3] Supreme Court Decision 95Da45125 delivered on April 12, 1996 (Gong196Sang, 1510), Supreme Court Decision 95Nu7239 delivered on September 10, 196 (Gong196Ha, 306Ha, 3064) / [3] Supreme Court Decision 206Da484364 delivered on April 3, 2005.

Plaintiff (Law Firm Barun, Attorneys Yan-sik et al., Counsel for plaintiff-appellant)

Defendant 1 and one other

Defendant 3 (Law Firm Two, Attorneys Kim Mung-dae, Counsel for the defendant-appellant)

Seoul High Court Decision 2005Na21427, 2005Na21434 decided December 7, 2005 (Counterclaim)

All appeals are dismissed. The costs of appeal are assessed against the Defendant (including the Plaintiff) through the principal lawsuit and counterclaim.

The grounds of appeal are examined.

1. The term "contract cancellation or rescission contract" means a new contract, regardless of whether the contract is rescinded or not, which provides that both parties to the contract shall terminate the validity of the existing contract by agreement and return it to the same state as that of the previous contract had not been concluded from the original date. In order to cancel the contract, the requirement is that the parties agree to agree on the subscription and acceptance of the contract (agreement). In order to establish such agreement, the contents of the parties' expressed act should objectively coincide. Of course, in order to cancel the contract, the agreement on the restoration of the original state at the time of the rescission of the contract should not be necessarily agreed on. However, in the event that the contract is rescinded by agreement, it falls under this example in light of our rule of experience (see Supreme Court Decisions 92Da4130, 92Da4147, Jun. 23, 1992; 92Da414147, Sept. 13, 1994).

Examining the relevant evidence established by the court below in light of the records, the purport of the statement made by the plaintiff (Counterclaim defendant; hereinafter "the plaintiff") to the defendant on May 6, 2004 to the defendant (Counterclaim plaintiff; hereinafter "the defendant") was to cancel the share acquisition agreement between the above defendant and the above defendant (hereinafter "the corporation of this case") for restoration to original state and compensation for damages, etc. immediately. The above defendant's certificate of contents (Evidence No. 1) sent to the plaintiff on May 7, 2004 only stated that the above defendant consented to the plaintiff's intention of rescission of the above contract of this case, and it cannot be seen that the above defendant continued to deliver the above KRW 100 million to the plaintiff on May 10, 204, the purport of the statement that the above defendant sent the above contract to the plaintiff on May 10, 2004 (Evidence No. 2) to the plaintiff on May 10, 2004, it can be viewed that the above defendant's new statement of cancellation of contract of contract of this case to the plaintiff.

Therefore, even if there were errors in the judgment of the court below that the Plaintiff cannot be deemed as an expression of intent to rescind the contract of this case on May 6, 2004, which was made to the above Defendant, contrary to the allegations in the grounds of appeal, the court below’s conclusion that the contract of this case between the Plaintiff and the above Defendant cannot be deemed as having influenced the conclusion of the judgment. Thus, the allegation in the grounds of appeal in this part is without merit

2. According to the reasoning of the judgment below, the court below acknowledged the facts based on the adopted evidence, and found the facts in light of all the circumstances such as the process of concluding the contract of this case and the circumstance of the dispute that occurred in the process of acquiring the management right of the corporation of this case thereafter, it should be viewed that the plaintiff's obligation to distribute and pay the money to the defendant of this case under the contract of this case to the plaintiff of this case only when the plaintiff becomes able to exercise the complete management right to the corporation of this case by transferring the management right of this case to the plaintiff. In other words, the above defendant's assertion that the contract of this case had been terminated since May 6, 2004, and around the 24th of the same month, the above defendant changed the corporate seal impression of the corporation of this case and newly received the passbook. In light of the following circumstances acknowledged by the above evidence, the court below did not err in the misapprehension of legal principles as to the probative value of the corporation of this case until the plaintiff acquired the management right of the corporation of this case until the time when it acquired the corporation's management right.

Furthermore, even if the plaintiff's non-performance of obligation is recognized, the rescission of the contract of this case on such ground is legitimate in cases where the plaintiff failed to perform the contract within a reasonable period of time or the plaintiff expressed that the plaintiff failed to perform the contract in advance (see Article 544 of the Civil Code), and even after examining the record, there is no evidence to acknowledge that the above defendant notified the plaintiff to perform the obligation or that the plaintiff failed to perform the obligation in advance, and therefore, the termination of the contract on the ground of the plaintiff's non-performance of obligation cannot be recognized. In this regard, the argument in the above grounds of appeal cannot be

3. As long as the authenticity of a disposal document is recognized, the court shall recognize the existence and content of the declaration of intent in accordance with the content of the document unless there is any reflective proof, and shall not reject it without any reasonable explanation. However, even in the case of a disposal document, if there is an express or implied agreement different from the content of the document, it may recognize facts different from the content of the document, and in interpreting the legal act of the originator, it may determine it by free evaluation of evidence to the extent that it does not violate the empirical and logical rules (see Supreme Court Decision 2005Da34643, Apr. 13, 2006, etc.).

According to the reasoning of the judgment below, the court below held that the contract of this case states that "the plaintiff shall pay 2.5 million won to defendant 3 on the last day of every three years from the conclusion of the contract of this case, and the first payment date shall be April 30, 2004, but if the plaintiff does not publish the modern mother program advertising in January and February of each year, it shall not be paid." However, in light of the circumstances acknowledged by the adopted evidence, the plaintiff shall be deemed to have agreed to pay the above defendant 2.5 million won each month on the condition that the plaintiff shall receive management rights of the corporation of this case and receive advertising fees by using the magazines published by the corporation of this case, and in light of the above legal principles and records, such judgment of the court below is justified, and it is not erroneous in the misapprehension of legal principles as to the interpretation of disposition documents, etc., as alleged in the grounds for appeal.

4. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party through the principal lawsuit and counterclaim. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Hwang-sik (Presiding Justice)