The effects of an agent’s expression of intention or interest against his/her own intent or interest, which is not a true intention for his/her own or a third party’s interest, and the criteria for determining whether he/she has

In a case where the other party knew or could have known that the expression of intention, which is not a true intention, was made by an agent and the intention of the agent was in breach of trust for the benefit of himself or a third party against the interest or will of the principal, the act of the agent cannot be constituted as the act of the principal, under the analogical interpretation of the proviso of Article 107(1) of the Civil Act, and thus, the principal is not responsible for the act of the agent. In this case, whether the other party knew or could have known that the agent was not a true intention should be determined reasonably in light of objective circumstances, such as the process of forming the expression of intention, its contents, and the effects arising therefrom.

Articles 107(1) and 116 of the Civil Act

Supreme Court Decision 86Meu1004 Decided July 7, 1987 (Gong1987, 1292), Supreme Court Decision 86Meu371 Decided November 10, 1987 (Gong1988, 78), Supreme Court Decision 94Da29850 Decided April 26, 1996 (Gong196Sang, 1662)

Plaintiff 1 and 72 others (Law Firm 21st century, Attorneys Lee Sung-soo et al., Counsel for the plaintiff-appellant)

Sungsan Saemaul Bank and one other (Defendant's attorney-at-law, Counsel for the defendant-appellant)

Gwangju High Court Decision 96Na951 delivered on July 24, 1997

All appeals are dismissed. The costs of appeal are assessed against the plaintiffs.

The grounds of appeal (the supplemental appellate brief filed by Plaintiffs 29 and 30 after the lapse of the deadline for submission is to the extent that it supplements the grounds of appeal).

1. On the first and third grounds for appeal

In a case where the other party knew or could have known that the expression of intention, which is not the truth, was made by an agent and the truth of the agent was in breach of trust for the benefit of himself or a third party against the principal’s interest or will, the act of the agent cannot be established as his substitute under the proviso of Article 107(1) of the Civil Act, and thus, the principal is not liable for the act of the agent. In this case, whether the other party knew or could have known that the agent was not the truth should be determined reasonably in light of objective circumstances (see, e.g., Supreme Court Decisions 86Meu104, Jul. 7, 1987; 86Meu371, Nov. 10, 1987; 94Da29850, Apr. 26, 1996).

In light of the records, the court below is justified in finding facts as stated in its judgment based on the evidence of its adoption, and if the facts are identical, the court below could have known that the above non-party's declaration of intent would not have been serious if the depositor of this case had exercised ordinary care. Therefore, the court below's declaration of intention is null and void. Accordingly, it is just in holding that the plaintiffs' primary claim against the defendant's treasury based on the premise that each of the above deposit contracts between the depositor of this case and the defendant treasury of this case is valid.

The judgment of the court below shall not contain any violation of the rules of evidence, misconception of facts, or misapprehension of legal principles as asserted in the grounds of appeal.

2. Regarding ground of appeal No. 2

In light of the records, we affirm the judgment of the court below that the ratio of the plaintiffs' negligence after recognizing the plaintiffs' negligence as stated in its holding is reasonable, and it is reasonable to determine the ratio of the plaintiffs' negligence to 60% or 40% of the total amount according to the degree of each negligence. There is no error of law by misunderstanding the legal principles as to the ratio of comparative negligence, as

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jong-sik (Presiding Justice)