(영문) 대법원 2015.8.27.선고 2014다25047 판결

The part of the lower judgment regarding the Plaintiffs’ Intervenor’s claim for damages is reversed, and that part of the case is remanded to the Seoul High Court.

The appeals by the Intervenor regarding the claim for the agreed amount by the Plaintiffs are dismissed.

Reasons

The grounds of appeal are examined.

1. As to the ground of appeal on the claim for agreed amount

A. As to the ground of appeal No. 1, Article 150(1) of the Civil Procedure Act provides, “When a party does not clearly dispute the facts alleged by the other party in the pleading, such fact shall be deemed to have been led to confession: Provided, That this shall not apply to cases where it is deemed to have proved the facts in light of the overall purport of the pleading.” Therefore, even at any time until the conclusion of the pleading, the parties may exclude the allegation of the other party by a dispute over the facts alleged by the other party, and whether to acknowledge the other party’s assertion should be determined specifically by examining the whole argument at the time of the closing of argument in the fact-finding court (see, e.g., Supreme Court Decision 2004Da2

According to the records, even from the appellate brief on the judgment of the court below prior to remand, the defendant alleged that C is not the representative of the defendant at the time of the instant agreement, and the lawsuit of the court below prior to remand is bound by the appellate court prior to remand. Thus, even though the plaintiff's successor did not reply to the plaintiff's assertion that "C has already become a legitimate representative of the defendant and at least the defendant should have ratified the agreement of this case explicitly," it is reasonable to view that the defendant argued the above argument of the plaintiff's successor as the whole in light of the purport of the pleadings.

Therefore, the judgment of the court below which did not consider the above assertion of the plaintiffs' successor as a confession under Article 150 (1) of the Civil Procedure Act does not err in violating the principle of pleading as alleged in the grounds of appeal.

B. As to the grounds of appeal Nos. 3 through 5

(1) In light of the purport of the entire pleadings and the results of the examination of evidence, the court shall determine whether a factual assertion is true in accordance with logical and empirical rules based on the ideology of social justice and equity (Article 202 of the Civil Procedure Act). The facts duly confirmed by the court below that the court below did not go beyond the bounds of the principle of free evaluation of evidence are binding on the court of final appeal (Article 432 of the same Act). On the other hand, a judgment on the party’s assertion and other means of attack and defense should be indicated to the extent that it can be recognized that the text of the judgment is justifiable, and it is not necessary to determine all the party’s assertion and methods of attack and defense (Article 208 of the Civil Procedure Act). Therefore, even if the court’s judgment does not directly indicate the specific and direct determination on the matters alleged by the party, it cannot be deemed an omission of judgment if it can be known that the assertion was cited or rejected in light of the overall purport of the reasons for the judgment, and even if it did not make a decision, it does not affect the conclusion of the judgment omission (see, etc.

(2) For reasons indicated in its holding, the lower court determined that: (a) on April 2007, when the instant agreement was concluded, C referred to himself as the Defendant’s standing adviser; (b) but at that time, it was insufficient to recognize that C had a legitimate representative authority of the Defendant; and (c) it is insufficient to recognize that the Defendant explicitly ratified the instant agreement through the act of non-exclusive representation of C; and (c) rejected the Plaintiffs’ succeeding intervenor’s assertion seeking partial payment out of the amount of capital gains tax additionally imposed on C based on the instant agreement.

(3) (A) The part of the ground of appeal disputing the fact-finding of the lower court is nothing more than an error of the lower court’s determination on the selection of evidence and the value of evidence, which belong to the free trial of the fact-finding court. In addition, even if examining the reasoning of the lower judgment in light of the aforementioned legal doctrine, the relevant legal doctrine as indicated in the lower judgment, and the evidence duly admitted, the lower court did not err in its judgment by misapprehending the legal doctrine on implied ratification of the act of free evaluation of evidence, or by exceeding the bounds of the principle

(B) In addition, examining the reasoning of the lower judgment in light of the aforementioned legal principles, the purport of the lower judgment’s rejection of the Plaintiffs’ Intervenor’s assertion to the effect that “it is clear that C has the right to legitimately represent the Defendant from mid-2006, in light of the circumstances in which it is indicated as the Defendant’s representative in the registration of the transfer of ownership in the Defendant’s name, which was made on January 2007, regarding the land located in Goyang-si.” In so doing, the lower court’s reasoning seems to be unacceptable, even in light of the evidence duly admitted, by examining the reasoning of the lower judgment.

In the above judgment of the court below, contrary to the allegations in the grounds of appeal, there is no error of law that affected the conclusion of the judgment due to the omission of judgment on the presumption power on the register.

2. As to the ground of appeal on claim for damages

A. Article 35(1) of the Civil Act provides that “a director or other representative of a corporation shall be liable to compensate for damages inflicted on another person in connection with his/her duties.” The term “representative of a corporation” shall be interpreted as including a person who actually performs the affairs of a corporation on behalf of the corporation and actually performs the affairs of the corporation, regardless of its name or position, or whether it has been registered as its representative. In specific cases, whether a person is a representative of a corporation shall be determined by comprehensively taking into account all the circumstances, including the status and role of the corporation, the procedure and method of performing the affairs of the corporation, the internal and external name of the corporation, and whether the internal and external name of the corporation and the other party to the transaction are perceived as the representative of the corporation, the relationship with the representative on the public record, and whether the representative on the public record is performing the affairs of the corporation (see, e.g., Supreme Court Decision 2008Da

In addition, the principle of free evaluation of evidence declared by Article 202 of the Civil Procedure Act means that it does not need to be linked to the formal and legal evidence rules, and it does not allow a judge’s arbitrary judgment. Thus, the fact finding should be in accordance with logical and empirical rules based on the principle of justice and equity, based on the admissible evidence that has gone through legitimate evidence examination procedures, and even if fact finding falls under the discretion of a fact-finding court, it shall not exceed the limit thereof (see, e.g., Supreme Court Decision 2009Da7198, 77204, Apr. 13, 2012).

B. The reasoning of the lower judgment and the evidence duly admitted reveal the following facts.

(1) around 1984, C took up approximately 40 households G in Seoul and entered into the E farm located in Goyang-si F, and up to October 2007, C was on the part of the Defendant’s standing adviser or the Chairperson of the Operation Committee.

(2) However, C was registered as the representative of the defendant at the competent tax office from January 1, 1998 to April 27, 201, where the business registration number was given to the defendant, and C was registered as the representative of the defendant at the competent tax office. On January 18, 2007, which was before he had been given the position of the president, as to the land located in Goyang-si, but C was registered as the defendant’s representative.

(3) In addition, since 2001, C appears to have been externally representing the defendant when the defendant negotiated with the executor of the above development project in relation to an urban development project in Goyang-si area 0, or when concluding a contract with the executor of the above development project, and C prepared and issued a receipt under the name of the defendant when the defendant receives the removal-related removal-related removal-related removal-related removal-related removal-related removal-related removal-related removal-related removal-related removal-related removal-related removal-related removal-related removal-related removal-related removal-related removal-related removal

(4) In addition, C was charged with the charge of taking property in breach of trust with respect to the above development project by an electrical construction company, etc. (Seoul Central District Court 2010Gohap1527). From November 2006 to February 201, at the time of receiving the said money on the first day, C had the actual representative of the Defendant and the said money received money as the representative of the Defendant. Accordingly, C was acquitted on the charge of taking property in breach of trust.

C. In addition to the above facts, examining the circumstances in which M, who was a lawful representative of the defendant at the time of the agreement of this case, does not seem to have obvious evidence that M, who was a legitimate representative of the defendant at the time of the agreement of this case, in light of the above legal principles, (1) before the conclusion of the agreement of this case, C constitutes a "representative" under Article 35 (1) of the Civil Act as a person who was actually operating the defendant's business on behalf of the defendant who was a juristic person and actually conducting the defendant's business on behalf of the defendant, and there is sufficient ground to view the agreement of this case as having been actually executed as the defendant's business on behalf of the defendant.

D. Nevertheless, the lower court rejected the Plaintiffs’ Intervenor’s conjunctive claim seeking compensation for the remainder of damages, which was found insufficient to deem that C actually performed the Defendant’s business on behalf of the Defendant at the time of the instant agreement, solely based on the reasons indicated in its reasoning.

Therefore, in so determining, the lower court erred by misapprehending the legal doctrine on the representative under Article 35(1) of the Civil Act, or by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, thereby adversely affecting the conclusion of the judgment. The allegation contained in the

3. Conclusion

Therefore, without further proceeding to decide on the remainder of the grounds of appeal by the succeeding intervenor as to the damages claim by the Plaintiffs, the part of the judgment below regarding the Plaintiffs’ succeeding intervenor’s damages claim is reversed, and this part of the case is remanded to the court below for further proceedings consistent with this Opinion. The appeal regarding the Plaintiffs’ succeeding intervenor’s damages claim is dismissed. It is so decided as per Disposition by