[1] The meaning of the expression of intent by fraud, and in case where the document of joint and several sureties signed and sealed on the document of fidelity guarantee, which is omitted from the awareness of signing and sealing on the document of fidelity guarantee by the third party's deception, whether the legal principle of expression of intent by fraud under Article 110 (2) of the Civil Code applies to such act (negative)

[2] The case holding that the assertion that the joint and several surety agreement was not concluded merely because it was mistakenly signed and sealed on a document for fidelity guarantee and did not read the performance guarantee insurance agreement, and that the above joint and several surety agreement was not concluded can be viewed as cancelled on the ground that it was erroneous

[3] Standard of determining whether there was omission of judgment in the judgment, and whether an appeal against the omission portion is legitimate (negative)

[1] The expression of intent by fraud is a case where a certain expression of intent is made due to a mistake caused by another person's deception, so there is no disagreement between the expression of intent and the indication. It is merely a mistake in the formation process, that is, the motive of the expression of intent. In this respect, it is distinguished from the expression of intent by mistake in its unique meaning. In the case where a joint and several surety's signature and seal is affixed on a document, which leads to legal effect different from his/her own opinion, the above act is a mistake in the name and seal (or mistake in signature) in the lecture, namely, a document which generates legal effect different from his/her own opinion, which constitutes a mistake in the so-called indication, in which a certain person affixs his/her name and seal without reading or properly understanding it, even if the above mistake was caused by a third person's deception, and in particular, it is not a case where the other party knew or could have known such third person's deception, and it is not a case where the right to cancel is not applied to the declaration of intent by mistake.

[2] The case holding that since the expression of intent of cancellation does not necessarily have to be explicitly stated, it is sufficient for the cancellation person to have expressed his intent to exclude the validity of his legal act from the beginning on the ground of such mistake, and the expression of intent of cancellation is valid even without the statement of the grounds for cancellation, it is the signature and seal on the document for fidelity guarantee, and the signature and seal was affixed without reading the performance guarantee insurance agreement with the misleading knowledge that it was signed and sealed on the document for fidelity guarantee, and that there was no joint and several surety agreement

[3] The judgment requires that the conclusion be stated in the text of the judgment in order to clarify the court's decision, so whether there is omission of the judgment shall be determined solely by the statement of the order, and in the case where the appellate court omitted the judgment, the part in which the lawsuit is still pending in the appellate court. Therefore, the appeal against it is unlawful as the object of appeal is nonexistent, and its rejection cannot be exempted.

[1] Articles 109 and 110 of the Civil Act / [2] Article 109 of the Civil Act / [3] Articles 212 (1) and 422 of the Civil Procedure Act

[2] Supreme Court Decision 66Da1289 delivered on September 20, 196 (No. 14-3, 68) / [3] Supreme Court Decision 68Da1859 delivered on June 10, 1969 (No. 17-2, 171), Supreme Court Decision 99Da50422 delivered on January 21, 200 (Gong2000Sang, 481), Supreme Court Decision 2001Da73572 Delivered on May 14, 2002 (Gong202Ha, 1394), Supreme Court Decision 203Da13604 delivered on May 30, 203 (Gong203Ha, 1439)

Seoul Guarantee Insurance Co., Ltd. (Attorney subordinate-soo, Counsel for defendant-appellee)

Kim Young-soo et al. (Law Firm Park & Ko, Attorneys Park Jung-young et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2003Na55389 delivered on July 20, 2004

The part of the lower judgment against Defendant Han-chul is reversed and the case is remanded to the Seoul High Court. Defendant Kim Jong-soo’s appeal is dismissed.

1. Determination on the appeal by Defendant Han Korea Express

In full view of the selected evidence, the court below concluded an international cargo transportation contract with the non-party 1 corporation (hereinafter referred to as the "non-party 1 corporation"), which is the non-party 2, for the purpose of securing the performance of the obligation related to the contract, the non-party 1's joint and several liability insurance contract, which was known to the non-party 3's non-party 1's non-party 2's non-party 1's non-party 2's non-party 1's non-party 3's non-party 2's non-party 2's non-party 3's non-party 1's non-party 2's non-party 1's non-party 2's non-party 3's non-party 1's non-party 2's non-party 2's non-party 3's non-party 2's non-party 2's non-party 3's non-party 2's non-party 2's non-party 2's non-party 3'

However, the expression of intent by fraud is a case where a certain expression of intent is made due to a mistake caused by another person's deception, so it cannot be inconsistent with the other person's expression of intent, which is merely a case where there is mistake in the motive of the expression of intent. In this regard, it is distinguished from the expression of intent by mistake in its unique meaning. In this case, the defendant Han Jong-chul affixed his signature and seal on a document of joint and several surety in the form of signature and seal affixed on the document of fidelity guarantee. In the end, the above act is a document which generates legal effect different from one's own intent, i.e., a document which causes legal effect different from the other's expression of name and seal, which constitutes a mistake in the so-called indication of signature and seal affixed without reading it or properly understanding it, even if the above mistake was caused by a third party's deception, it is not a case where the other party knew or could have known the fact, and in particular, it is not a case where the expression of intent was not able to exercise the right of cancellation.

On the other hand, in this case, although Defendant Han-gu did not assert that the above joint and several liability agreement was revoked on the ground that it was an expression of intent based on mistake, the expression of intent of revocation is not necessarily required to be explicitly stated, it is sufficient if the revocation person expresses his intent to exclude the validity of his legal act from the beginning on the ground of mistake, and even without the statement of the cause of revocation is valid, the expression of intent of revocation is valid without the statement of the cause of cancellation. Thus, it was signed and sealed by Defendant Han-gu's assertion, that is, the signature and seal of the performance guarantee agreement, and the fact that there was no joint and several liability agreement does not necessarily mean that it is revoked on the ground of mistake of the above joint and several liability agreement (see Supreme Court Decision 6Da1289 delivered on September 20, 196). Accordingly, the court below should have organized the allegation of Defendant Han-gu by clarifying the above point, and should have judged by applying the legal principles and regulations concerning mistake of intent after organizing

Nevertheless, the court below rejected the defendant Han-gu's assertion, which is merely the purport that he declared a defective declaration of intention by the co-defendant 1 and the non-party 1, a third party, who is not a contracting party, in the first instance court's co-defendant 1 and the non-party 1's fraud. Thus, the court below rejected the plaintiff's assertion on the ground that there is no evidence to deem that the plaintiff knew or could have known such circumstance. The court below's decision was erroneous in the misapprehension of legal principles as to fraud and mistake in the declaration of intention without fulfilling his duty of explanation, which affected the conclusion of the judgment. The

2. Judgment on the appeal by Defendant Kim Jong-soo

In order to clarify the judgment of the court, since the conclusion is required to be stated in the text, whether there is omission of the judgment shall be determined solely by the statement of the order (see Supreme Court Decision 2001Da73572 delivered on May 14, 2002, etc.). In the case where the appellate court was omitted from the trial, the part of the judgment shall be deemed to be still pending in the appellate court. Thus, the appeal against it is unlawful as the object of appeal is nonexistent, and ultimately dismissed (see Supreme Court Decision 99Da5042 delivered on January 21, 200).

In light of the reasoning of the judgment below, the defendant's appeal is dismissed following the judgment on the argument of the grounds of appeal by the defendant Kim Jong-soo. However, since the order of appeal is omitted, this part of the judgment cannot be deemed to have been omitted, and eventually, the appeal by the defendant Kim Jong-soo is unlawful because there is no judgment on the grounds of appeal.

3. Conclusion

Therefore, the part of the judgment of the court below against Defendant Han-chul is reversed, and the case is remanded to the court below, and the appeal by Defendant Kim Jong-soo is dismissed. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)