2018Da272735 Compensation for damages

person

A

B

A notary public, an attorney of the Ministry of Foreign Affairs,

Attorney Park Jong-dae

Suwon District Court Decision 2017Na72843 Decided September 6, 2018

February 28, 2019

The part of the judgment below against the defendant is reversed, and that part of the case is remanded to Suwon District Court. The plaintiff's appeal is dismissed.

1. Case history

The reasoning of the lower judgment and the evidence duly admitted by the lower court reveal the following facts.

A. On August 31, 2012, the Plaintiff entered into a contract with Nonparty C Co., Ltd. (hereinafter referred to as “Nonindicted Co., Ltd.”) for the repair of building located in Pyeongtaek-si (hereinafter referred to as “instant construction”) and paid KRW 80 million in advance to Nonparty Co., Ltd. (hereinafter referred to as “the instant construction”). Moreover, the Plaintiff entered into a contract for retaining wall construction and for some roof steel framed construction.

B. While carrying out the instant construction, the non-party company carried out part of the roof rail construction and removed part of the buildings. On October 2012, the head of Pyeongtaek-si issued an order to suspend the construction and remove steel structures already installed on the ground that the said construction was an act of violating the Building Act. The non-party company discontinued the instant construction around that time.

C. On October 15, 2012, the Plaintiff notified the non-party company and D of the rescission of the instant construction contract, and filed a lawsuit against the non-party company and D on May 3, 2013 (hereinafter referred to as "related civil case"). The Seoul High Court (2013Na27949) rendered a judgment on September 5, 2014 that "the non-party company would pay to the Plaintiff the amount of KRW 14,244,500 and delay damages therefor," and the said judgment became final and conclusive on December 30, 2014. The instant judgment became final and conclusive on December 30, 2014. After the premise that the instant construction contract was lawfully rescinded, the non-party company would return to the Plaintiff the remainder after deducting the expenses, etc. paid by the non-party company from the advance payment, etc. received from the Plaintiff.

D. On the other hand, on September 8, 2012, the Defendant concluded a subcontract agreement with the Nonparty Company to accept a subcontract for the instant construction work with the amount of KRW 25 million.

E. On September 8, 2012, the Defendant issued to the non-party company each receipt (hereinafter “instant receipt”) that received construction cost of KRW 5 million on September 8, 2012 (contract deposit), KRW 20 million on September 28, 2012, and KRW 20 million on the instant subcontract contract. In addition, on September 8, 2012, the Defendant entered into the instant subcontract with the non-party company and completed installation works, such as turs, around September 8, 2012. The Defendant issued a written confirmation (hereinafter “written confirmation”) that “The Defendant received KRW 2500,000 from the non-party company after the said construction.”

F. D submitted the instant KRW 5 million receipt and the instant confirmation document to the full bench in the relevant civil case. In the relevant civil case, the KRW 25 million was recognized as the cost incurred in the subcontracted work, and the non-party company was deducted from the amount to be restored to its original state to the Plaintiff.

2. The judgment of the court below

In full view of the adopted evidence, the lower court recognized that the Defendant either knew or at least foreseeablely knew that the receipts of KRW 20 million were to be submitted as evidence for the relevant civil case, and provided them to D with a false content of the receipts. Accordingly, the lower court determined that the Defendant, in collusion with D, was unable to obtain the satisfaction of claims against D by acquiring a final judgment on a civil case involving any content different from the actual ones or by aiding and abetting the court to acquire a final judgment on a civil case involving D’s relevant civil case in an unlawful manner by deceiving the court by preparing false evidence with intent to impair the Plaintiff’s rights, thereby restricting its liability to 50%.

3. Judgment of the Supreme Court

A. When a judgment becomes final and conclusive in a civil lawsuit, res judicata becomes final and conclusive, and thus promoting the legal stability of the parties concerned and, in order to exclude the effectiveness of the above final and conclusive judgment, seeking its revocation by a lawsuit for retrial is a matter of principle. Therefore, in order to constitute tort involving the acquisition of a final and conclusive judgment or execution based thereon, a party to a lawsuit must obtain a final and conclusive judgment different from the actual relation of rights by unlawful means, such as obstructing the party’s intervention in the lawsuit or deceiving a court by false assertion, and thus, respecting the validity of the final and conclusive judgment by fundamentally infringing on the other party’s procedural fundamental rights, which is contrary to the concept of justice, should be justified (see, e.g., Supreme Court Decision 2009Da82046, 82053, Feb. 11, 2010).

B. When considering the facts of this case in light of the legal principles of judicial precedents, in order to recognize the defendant's act of preparing and delivering the original receipts of KRW 20 million as a tort by unlawful means, the judgment of the court below that the defendant's act of preparing and delivering the original receipts of KRW 20 million in the related civil cases constituted a tort should have become final and conclusive different from the actual relation of rights in the related civil cases, since the defendant prepares and delivers the original receipts of KRW 20 million in the false contents, and ② the defendant's act of preparing and delivering the original receipts of KRW 20 million in the related civil cases violates the plaintiff's procedural basic rights in the related civil cases, and thus respecting the validity of the final and conclusive judgment should be limited to the extent that it cannot be implied, contrary to the concept of justice. In light of the records of the court below, it is difficult to accept the judgment of the court below that the defendant's act of preparing and delivering the original receipts of KRW 20

(1) First, on the following grounds, it is difficult to readily conclude that the lower court’s judgment was final and conclusive on the basis of the receipts of KRW 20 million in the relevant civil case, which differs from the actual relationship of rights.

(A) The Defendant appears to have entered into the instant subcontracting contract with the Nonparty Company and actually carried out steel framed works, etc. at the construction site of this case. The lower court also determined that there was insufficient evidence to view that the instant KRW 5 million receipt was falsely drawn up, stating that the Defendant received the down payment of the instant subcontracted works.

(B) The circumstances presented by the lower court as the ground for determining that the content of the original receipt of KRW 20 million is false are most of the circumstances that the Plaintiff had already asserted in the relevant civil case, or had been present in the process of the lawsuit, and that are not newly revealed after the judgment of the relevant civil case became final and conclusive. The person at the lower court

In a criminal case where the plaintiff filed a complaint against D on the charge of fraud during the course of the relevant civil case, the plaintiff stated that D's actual payment to D was only five million won, and 20 million won was offset against the defendant's obligation to be individually paid to the defendant. It cannot be ruled out that there was an agreement between D and the defendant, the representative director of the non-party company, regardless of the validity of offset. Thus, it is difficult to conclude that the defendant did not fully pay the subcontract cost of this case by the above statement.

(C) In contrast, there was no further examination of evidence as to the fact that the Defendant did not actually incur the subcontract cost of this case, such as examination of witness in the lower court as to D.

(D) In relation to the performance of the litigation in a related civil case, the Plaintiff made a statement to the effect that D would withdraw a complaint after questioning the nature of D in the criminal case against which D had filed a criminal charge of fraud, and in the end, D would have been subject to a disposition that D would have been subject to suspicion.

(2) In addition, even if the contents of the original receipt of KRW 20 million are false, and the Defendant did not actually incur construction costs of KRW 20 million in connection with the subcontracted project of this case, it is difficult to deem that the submission of the original receipt of KRW 20 million prepared by the Defendant in the relevant civil case was a fundamental infringement of the Plaintiff’s procedural fundamental rights.

(A) The original receipt of KRW 20 million is not forged or altered by a person who is not authorized to prepare the instant receipts. In the relevant civil case, the Plaintiff already asserted that the entries of the instant KRW 20 million are not trustable as they are, and asserted its probative value.

(B) In addition to the instant KRW 20 million receipt, the Nonparty Company submitted evidentiary materials, work logs, construction waste acceptance certificates, photographs, etc. to the effect that the Defendant actually performed construction works at the construction site of this case.

(C) In addition to the assertion that the Plaintiff cannot believe the content of the instant KRW 20 million receipt as it is, the Plaintiff did not file a motion to challenge D or the Defendant’s witness application, and the application for appraisal of construction cost for the instant subcontracted work cost, etc.

(D) According to the judgment of related civil cases, the court recognized the fact that D or the defendant spent the instant construction work by comprehensively taking into account the evidence submitted by the non-party company and calculated the amount to be returned from the non-party company.

D. In full view of the aforementioned circumstances, the Plaintiff’s failure to receive KRW 20 million, which was recognized as a private expense for the subcontract of this case in the relevant civil case, is fundamental infringement of the Plaintiff’s procedural fundamental rights and respect for the validity of the final judgment cannot be deemed to have reached an extent that it was significantly unacceptable, contrary to the concept of justice. Nevertheless, the lower court recognized the Defendant’s preparation of a receipt of KRW 20 million and the issuance of a receipt as a tort by deceit of the final judgment, thereby adversely affecting the conclusion of the judgment by misapprehending the legal principles on the establishment of tort by deceit of the final judgment. The Defendant’s ground of appeal assigning this error is with merit, while the Plaintiff’s ground of appeal disputing the error of limitation of liability on the premise that the Defendant’s liability for damages was recognized due to tort is without merit.

4. Conclusion

Therefore, the part of the judgment below against the defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The plaintiff's appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Kim Jae-hwan

Justices Park Sang-ok

Justices Lee In-bokon

Justices Noh Jeong-hee