(영문) 대법원 2017.9.21.선고 2017다18156 판결

1. A written judgment shall state the reasons, and it shall indicate the judgment on the party’s allegations and other means of offence and defense to the extent that it is possible to recognize that the main text is justifiable (Article 208(1) and (2) of the Civil Procedure Act), and when the reasons for the judgment are not clarified, an absolute grounds for appeal shall be the grounds for appeal (Article 424

2. The record reveals the following facts.

A. (1) In the first instance trial, the Plaintiff asserted that, on behalf of the Defendant, C in a de facto marital relationship with the Defendant, entered into a contract for the Civil Works Corporation (hereinafter “the instant construction contract”) on six parcels, such as Pyeongtaek-si D (hereinafter “instant land”), on behalf of the Plaintiff, the Defendant is obligated to pay the construction price to the Plaintiff, and submitted the instant construction contract (Evidence A).

(2) As to this, the Defendant asserted that the instant construction contract was forged, C did not prepare the instant construction contract, and the Defendant did not grant C the power to represent the instant construction contract.

(3) The first instance court rejected the Plaintiff’s claim on the ground that it was insufficient to prove that the Defendant granted C the right to represent regarding the conclusion of the instant construction contract without determining who actually prepared the instant construction contract.

B. (1) At the lower court, the Plaintiff added the assertion that C ratified the conclusion of the instant construction contract to the effect that it constitutes an expression representation under Articles 125 and 126 of the Civil Act even though C was not granted the power of representation to conclude the instant construction contract by the Defendant.

In addition, as evidence of the above argument, ① a copy of the deposit passbook under the name of the defendant, deposit and withdrawal card, ② a statement of commitment performance (Evidence 6) under the name of the defendant bearing the same seal as the seal attached to the defendant's name, a civil engineering design and authorization contract (Evidence 20) and each of the documents mentioned above are submitted as evidence of the above argument that the defendant remitted to the other party to the preparation of the documents at the time when the documents are prepared (Evidence 15-1, No. 19, No. 25), and a written investment agreement (Evidence 24-1, No. 24-4, and No. 14) written in the name of "Defendant (C)," and a loan certificate (Evidence 14) written in the name of "Defendant's agent."

(2) As to this, the Defendant denied all the Plaintiff’s assertion on the following grounds: (a) the instant construction contract and the documents written in the name of the Defendant were forged; and (b) C did not prepare such documents.

(3) However, the lower court rejected the Plaintiff’s appeal by citing the reasoning of the first instance judgment, and citing the reasoning of the first instance judgment.

3. Examining the above facts in light of the legal principles as seen earlier, even if there is insufficient evidence as to whether the Defendant conferred the power of representation to C, as seen in the first instance judgment, it is deemed that the establishment of expression agency and ratification should be determined based on the results of the examination based on the evidence presented by the Plaintiff as to whether and how and how the Defendant actually prepared the instant construction contract, and the details leading up to the preparation of other documents prepared in the name of the Defendant, and the developments leading up to the transfer by the Defendant to the preparing party. Therefore, the lower court should have deliberated on the above circumstances, and should have determined the legitimacy of the Plaintiff’s assertion as to the expression agency and ratification

Nevertheless, the lower court rejected the Plaintiff’s appeal without stating any grounds for the Plaintiff’s assertion on the apparent representation and ratification added by the lower court merely citing the grounds of the first instance judgment, which lack of proof as to the granting of the Defendant’s power of representation, so the lower court erred by failing to exhaust all necessary deliberations, as otherwise alleged in the grounds of appeal.

4. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.