In a case where Gap was given legitimate power of representation for the conclusion of a sales contract to Eul, the case reversing the judgment of the court below which found that Eul was in a state of business capacity for Eul at the time of the proxy formation

Article 114 of the Civil Act

Plaintiff (Law Firm Hyeong, Attorneys Cho Jae-in et al., Counsel for the plaintiff-appellant)

Defendant

Seoul Northern District Court Decision 2012Na6777 decided May 31, 2013

The judgment of the court below is reversed, and the case is remanded to the Seoul Northern District Court Panel Division.

The grounds of appeal are examined.

According to the reasoning of the judgment below, on August 30, 2010, the court below acknowledged that the Plaintiff entered into the instant sales contract with Nonparty 2, who was the deceased Nonparty 1 (hereinafter “the deceased”), to purchase the real estate owned by the deceased, and that the date of preparation was “ August 9, 2010” on the real estate transaction delegation (hereinafter “the instant delegation”) with the content that the deceased entrusted Nonparty 2 with the conclusion of the instant sales contract. In light of the circumstances stated in its reasoning, the instant delegation was prepared retroactively on August 30, 2010 by the date of preparation as “ August 9, 2010,” and around that time, the deceased’s health status aggravated, lack mental ability or intelligence to reasonably determine the meaning or result of the instant sales contract, and thus, Nonparty 2 cannot be deemed to have been granted legitimate authority from the deceased.

However, according to the reasoning of the judgment below and the evidence rejected by the court below, the letter of delegation of this case was accompanied by the deceased’s certificate of personal seal impression issued on August 11, 2010, and the deceased was hospitalized at the Seoul Asan Hospital around August 7, 2010 and discharged on August 12, 2010, and transferred the deceased to the Korea Tourism University Senior Hospital. At the time of discharge from the Seoul Asan Hospital, the deceased’s own care and counseling and expressed his intention to refuse medical treatment. According to these facts, the letter of delegation of the deceased’s certificate of personal seal impression was prepared at least before August 11, 2010, and the letter of delegation of this case attached with the above certificate of personal seal impression was prepared around that time. Since it appears that the deceased had mental ability or intelligence to give advice and expressed his intention to refuse medical treatment, there is sufficient room to deem that the contract of this case was duly executed by Nonparty 2.

Nevertheless, for the reasons indicated in its holding, the court below erred by failing to exhaust all necessary deliberations as to the time and process of preparing the power of attorney in this case, which affected the conclusion of the judgment, where the power of attorney in this case was formulated retroactively, and it was determined that the deceased was in the state of his/her capacity to act. The ground of appeal

Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Yong-deok (Presiding Justice)