[1] The degree of hearing in recognizing the authenticity of a disposal document

[2] The court's duty of explanation in a case where a party to a lawsuit is dissatisfied with the fact that a document was forged or written without authority

[1] Whether to acknowledge the authenticity of a document shall be determined by the court based on free evaluation, based on all the evidence and the purport of oral argument, and in view of the fact that the authenticity of the document should be recognized unless there is any clear and acceptable counter-proof that the content of the document is denied if the authenticity is recognized, the existence and content of the declaration of intent in accordance with the contents of the document should be recognized.

[2] While disputing the purport that a party to a lawsuit was forged, or written without authority, it is deemed that the recognition of the formation of a party’s own authenticity in the procedure of the acceptance of the documentary evidence belongs to this case. Thus, the court shall not recognize the establishment of the said document’s authenticity in the procedure of the acceptance of the documentary evidence, or at least clearly state the purport of the party’s statement contradictory to the above.

[1] Article 187 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 202) / [2] Article 126 of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002) (see current Article 136)

[1] Supreme Court Decision 87Meu3147 delivered on December 13, 1988 (Gong1989, 103) Supreme Court Decision 93Da5456 delivered on October 11, 1994 (Gong1994Ha, 2954) (Gong2002Ha, 2413) delivered on September 6, 2002 (Gong2002Ha, 2413)

Plaintiff

Defendant

Seoul District Court Decision 2000Na43092 Delivered on April 19, 2001

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

We examine the grounds of appeal.

The court below, based on the evidence of employment, found that the defendant, on July 31, 1991, sold to the non-party 1 390,000 m241 m2,00,000 of Seodaemun-gu Seoul ( Address 1 omitted), and the remaining 360,000,000,000 won were agreed to be paid as the sale price after the non-party 1 newly constructed and sold a multi-household house on the above land. Accordingly, the non-party 1 newly constructed and sold a multi-household house on the above land under the name of the defendant, and the registration of preservation of ownership was completed on June 16, 192 under the name of the defendant on June 16, 192, and recognized that the non-party 1, the seller and the non-party 1, the purchaser, the plaintiff, the sales price of the plaintiff, the sales price of which was 60,000,000 won as the sales contract, and the non-party 1, the defendant 29000.2.

Whether to acknowledge the authenticity of a document is to be determined by free will by the court based on all evidentiary materials and arguments (see, e.g., Supreme Court Decision 87Meu3147, Dec. 13, 198). In light of the fact that where the authenticity of a document is recognized, the existence of a declaration of intent in accordance with the content of the document must be recognized unless there is any clear and acceptable counter-proof that the content of the document should be denied (see, e.g., Supreme Court Decision 2002Da34666, Sept. 6, 202).

According to the records, the defendant did not enter into a sales contract for multi-household 201 with the plaintiff on August 11, 1998 and signed and sealed all the plaintiff's signature and sealed on the above sales contract for multi-household 201, and the defendant did not receive the down payment and remainder from the plaintiff. The defendant argued the cause of the plaintiff's claim. The defendant stated the above written answer on the first date for pleading ( August 26, 1998) and stated the above written statement on the first date for pleading 1, and stated the above written statement on the document's written statement on the above date for pleading 2, the above sales contract (Evidence 2), the down payment, and the receipt for the remainder (Evidence 3-2, 4-2, and 4) on the same date. The defendant argued that the above written statement was forged or written without authority, and it is not contradictory to the purport of the above document's authenticity in the procedure for the formation of the Gap's signature and sealed statement. Therefore, it is not contradictory to the court's conclusion.

Meanwhile, according to the records, the plaintiff is the mother of the above non-party 1 and the above multi-household 202 already completed the registration of ownership transfer in its name; the above non-party 1 completed the provisional registration of the right to claim ownership transfer registration in its name on January 20, 1993 with respect to the above multi-household 201; and on April 9, 1997, a judicial compromise has been made between the defendant and the defendant on the implementation of the principal registration procedure; and the above non-party 1 still is in arrears with the business income tax of 36 million won due to the new construction and sale of the instant multi-household; and upon the application of the competent tax office's subrogation, the above non-party 1's failure to pay national taxes on the above multi-household 201 on April 28, 1998.

In light of the above circumstances, the evidence that the Plaintiff purchased the above multi-household 201 from the Defendant on June 1, 1992 is difficult to obtain in light of the empirical rule that the Plaintiff purchased the above multi-household 201. In addition, there is no evidence to believe otherwise other than the sales contract and receipts that there is doubt about the actual establishment, and that the person who constructed a multi-household house with the purchase price as the purchase price is selling two households out of the old mother. Furthermore, if the Plaintiff purchased the above multi-household 201 from the Defendant on June 1, 1992, the above non-party 1 purchased the above multi-household 201 from the Defendant on June 1, 1992, the above non-party 1 was granted a provisional registration of the right to claim ownership transfer registration under his name, not the Plaintiff’s mother, and the above judicial compromise was made on April 9, 1997. Ultimately, the above non-party 1, who failed to pay income tax, was aware of the above provisional registration as the Plaintiff 1’s title of the above provisional registration.

Nevertheless, the court below's determination that the defendant is liable to implement the procedure for the registration of ownership transfer of the real estate of this case by recognizing the authenticity of each of the above evidence Gap, which is inconsistent with the argument in the pleading, by neglecting the duty to explain and establish the authenticity of each of the above evidence Gap, is erroneous in the misapprehension of the law of failure to exercise the right to ask for name or misconception of facts in violation of the rules of evidence. The ground of appeal assigning this error

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 Seo-sung (Presiding Justice)