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The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.
Reasons
The grounds of appeal are examined.
1. Article 116(1) of the Civil Act provides, “If an expression of intention is affected by a defect of intention, fraud, coercion or any circumstance or by negligence, the existence of such fact shall be determined by the standard for the agent.”
Therefore, in a case where a representative has made a false declaration in collusion with the other party, the expression of will may not take effect without asking the other party's bad faith, and the principal may not be protected as a bona fide third person under Article 108 (2) of the Civil Code.
2. The court below, citing the judgment of the first instance, acknowledged that the defendant entered into the original manufacture subcontract (the above contract appears to be merely the original purchase contract according to the records; hereinafter "the contract of this case") with the plaintiff and did not perform the obligation to deliver the original unit to the plaintiff even after receiving KRW 165,616,00 from the plaintiff, and the plaintiff did not perform the obligation to deliver the original unit. Since the contract of this case was terminated upon the delivery of the complaint containing the plaintiff's declaration of contract rescission on the ground of such non-performance by the defendant, the defendant is liable to recover the original unit price to the plaintiff, and the defendant is also obligated to pay the plaintiff the interest and delay damages.
Furthermore, the lower court rejected the Defendant’s assertion that the instant contract constitutes a false declaration of conspiracy and thus null and void, on the grounds that there is no difference between the truth and indication of the declaration of intention in order to establish a false declaration of conspiracy and there is an agreement with the other party as to the inconsistency, and there is no evidence to acknowledge that the Defendant knew that the instant processing transaction was made without the actual transactional relationship and that there was no evidence to acknowledge that
3. However, the lower court’s determination is difficult to accept for the following reasons.
The court below held.