[1] Whether fraud or coercion by a person who can be deemed identical to the other party, such as a representative of the other party, constitutes fraud or coercion by a third party under Article 110(2) of the Civil Act (negative)

[2] The case holding that in case where the head of a bank's branch office at the request of a bill discount was obtained as a collateral in preparation for the default of a bill, and a monetary loan for consumption and joint and several guarantee agreement was concluded, the act of the branch office cannot be viewed as fraud by a third party

[1] Where a third party made a fraud or duress with regard to an expression of intent of the other party, such declaration of intent may be revoked only when the other party knew or could have known such fact. However, the fraud or duress by a person, such as an agent of the other party, who is deemed identical to the other party, does not constitute fraud or coercion by a third party.

[2] In a case where the head of a bank's branch office at the request of a bill discount, entered into a monetary loan for consumption and a joint and several surety agreement, and then withdraws the loan and used it, the case holding that the above branch office's act is merely the fraud of the person who can be deemed the same as the bank or bank, and it cannot be viewed as the fraud of a third party, and that the above agreement can not be revoked only where the bank knew or could have known the fraud

[1] Article 110 (2) of the Civil Act / [2] Article 110 (2) of the Civil Act

[1] [2] Supreme Court Decision 96Da41496 delivered on January 23, 1998 (Gong1998Sang, 578)

Korea Housing and Commercial Bank (Attorney Yoon Young-young, Counsel for the defendant-appellant)

Jeon-jin et al. (Law Firm Busan Dong-dong, Attorneys Maximum price-level, Counsel for the defendant-appellant)

Busan District Court Decision 97Na14580, 15545 delivered on October 30, 1998

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. The court below found that, upon the request of Nonparty 1, the head of the branch office of the Plaintiff bank, the head of Geumsan Construction Co., Ltd., who was aware of the payment of KRW 60,00,00 of the total amount of KRW 4,000,00 of the Promissory Notes acquired and held by the said company, Nonparty 1 found the above company and held the above Promissory Notes and accepted the above Promissory Notes as a collateral in preparation for the default of payment of the Promissory Notes to the Defendants (the employees of the above company, and the Lee Jong-jin is the relatives of the defendant Cho Young-jin and Lee Jong-young.). The court below found the Defendants as the principal debtor and as the joint guarantor of the defendant Lee Jong-jin and Lee Jong-young, signed and sealed the loan-related documents, and did not accept the above part of the judgment below's decision that the Defendants borrowed 3,000,000 won from the Plaintiff bank as the above branch office and did not accept the order of the court below's determination of facts.

2. Where a third party makes a fraud or coercion with regard to an expression of intent of the other party, such declaration of intent may be revoked only when the other party knew or could have known such fact. However, the fraud or coercion by a person who is deemed identical to the other party, such as an agent, does not constitute fraud or coercion by the third party as mentioned in the ground of appeal (see this Court Decision 96Da41496, Jan. 23, 1998).

If the facts of this case are identical to the above, in the monetary loan and joint and several surety agreement between the plaintiff and the defendants, the non-party 1's fraud is merely the fraud of the person who can be deemed identical to the plaintiff or the plaintiff, and cannot be viewed as the fraud of the third party. Thus, only if the plaintiff knew or could have known the non-party 1's fraud, the defendant does not

The judgment of the court below to the same purport is just, and there is no error in the misapprehension of legal principles, incomplete deliberation, or inconsistent reasoning. Therefore, this ground of appeal is not accepted.

3. In the instant case, even if Nonparty 1 deemed to have concluded an agreement on a monetary loan, etc. with the Plaintiff bank on behalf of the Defendants, it cannot be deemed that there is any influence on the conclusion of the lower court’s conclusion, and thus, the allegation in the grounds of appeal

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Don-hee (Presiding Justice)