(영문) 대법원 2015.3.20.선고 2012다53505 판결

1. A settlement in the court has the same effect as a final and conclusive judgment (Article 220 of the Civil Procedure Act). If a settlement in the private law between the parties forms the content thereof, a settlement in the private law becomes null and void (Article 732 of the Civil Act). If a settlement in the private law takes effect (Article 732 of the Civil Act), the relationship of rights and duties based on the previous legal relations shall be extinguished. However, the scope of effect on the creation of a settlement shall be limited to the matters agreed to be decided by the parties by mutual concession, and it shall not take effect on the matters that have not been claimed by the parties, or that have not yet been understood as a premise of compromise (see Supreme Court Decision 9Da17319, Apr. 27, 2001). Such legal relationship likewise applies to a conciliation in the private law conciliation

Meanwhile, the interpretation of a juristic act is to clearly confirm the objective meaning that the parties gave to the act of representation. In a case where the objective meaning is not clearly revealed by the language and text expressed by the parties, it shall be reasonably interpreted in accordance with logical and empirical rules, common sense of society, and common sense of transaction, by comprehensively taking into account the contents of the language and text, the motive and background leading up to the juristic act, the purpose and genuine intent to be achieved by the juristic act, transaction practices, etc. of the parties concerned, in a manner consistent with the ideology of justice and equity. Such a legal principle likewise applies to a case where there is a dispute as to the interpretation of the pertinent adjustment clause after the mediation was concluded between the parties concerned (see, e.g., Supreme Court Decision 2009Da315

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

(1) On January 14, 2005, the Plaintiff entered into a sales contract with C to purchase each real estate listed in the separate sheet of the court below (hereinafter “each real estate of this case”) for KRW 3.70 million (hereinafter “the first sales contract”), and paid KRW 350 million in total for the down payment, intermediate payment, and remainder, and the remainder KRW 3.38 billion in total was paid to C by means of the Plaintiff’s acceptance of the obligee, Han-gu Mutual Savings Bank, Korea, which is the secured debt of the right to collateral security established on each real estate of this case.

(2) On January 14, 2005, the Plaintiff: (a) received a delivery of each of the instant real estate from C and operated a hotel; (b) delayed payment of public charges, such as electricity charges; and (c) the Plaintiff did not take over the first loan obligations; and (d) the Plaintiff’s loan interest and burden on C, the obligor, as the Plaintiff did not take over the first loan obligations. On May 9, 2008, C created a collateral security (2.6 billion won with respect to each of the instant real estate to Yong-Nam Mutual Savings Bank Co., Ltd.; and (b) obtained a loan under the name of Vice-Nan Co., Ltd. (hereinafter “the second loan obligations”); and (c) deleted a collateral security (hereinafter “the second loan obligations”).

(3) After the occurrence of a dispute over the implementation of the first sale contract between the Plaintiff and C, the Plaintiff filed a lawsuit against C with the Changwon District Court, Jinju Branch Branch, 2009Kahap1224, and rendered a favorable judgment on December 11, 2009. However, in the Busan High Court case No. 2010Na1586, which is the appellate court, on September 10, 2010, the Plaintiff paid the delinquent local tax and electricity charges to C, and paid the local tax paid by C to C (hereinafter referred to as “the consideration in this case”) and the simultaneous performance of the consideration in which C performed the first sale contract with respect to each of the instant real estate.

(4) From October 8, 2010 to December 28, 2010, C notified the Plaintiff that he/she prepared to perform the obligation to transfer ownership of each of the instant real estate three times, and notified the Plaintiff that he/she would dispose of each of the instant real estate to a third party with the knowledge that the Plaintiff would have no intention or ability to execute the obligation to transfer ownership of the instant real estate, specifying the date, time, and place at the same time and place and at the same time as the delivery of relevant documents for transfer of ownership.

(5) However, the Plaintiff did not mention at any time to implement the instant consideration, while asserting that it was conducted in return for the instant consideration and at the same time C had the right to obtain the registration of transfer of ownership with respect to each of the instant real estate, but did not take any measures to perform the instant consideration, including the assumption of obligation or repayment with respect to the secondary loan obligations.

(6) As C did not receive the payment of the instant consideration from the Plaintiff by the last due date set by C at the highest notice, on November 19, 2010, the registration of ownership transfer was completed for the Defendant on November 18, 2010 as to each of the instant real estate, which was based on the sales contract of November 18, 2010 (hereinafter “second sales contract”).

3. Examining the above facts in light of the legal principles as seen earlier, the instant conciliation is interpreted as having been amended by prescribing the seller’s obligation to transfer the ownership of each of the instant real estate on the premise that the first sale contract remains in existence, and by prescribing the specific contents of the consideration that the Plaintiff, the buyer, should perform in relation to the secondary loan obligations, etc. incurred after the first sale contract. It does not seem to be an adjustment to the effect that, in the event that the nature of each of the instant real estate as the sale contract is modified or the said consideration is not performed under the instant conciliation, the occurrence of the contract relationship itself, which is the basic contract relationship itself, and the exercise of the statutory right to cancel the sale contract, may be rescinded on the ground of the Plaintiff’s nonperformance of the obligation to cancel the contract, and such exercise of the right to cancel the contract does not conflict with the effect of establishing the instant conciliation or the res judicata effect.

Examining the facts established based on these circumstances, it is sufficient to view that the first sale contract was lawfully rescinded by C’s declaration of intent to cancel the contract due to the Plaintiff’s non-performance of the corresponding consideration. Moreover, in light of the Plaintiff’s act of failing to properly perform the instant consideration three times, it is difficult to view that C had no intent or ability to perform the first sale contract, such as the highest notice, and that C had the intent to commit breach of trust with respect to the act of completing the performance by concluding the second sale contract with the Defendant and the second sale contract with respect to the real estate of this case.

4. Nevertheless, the lower court determined otherwise on the erroneous premise that the first sale contract for the instant 1 and 2 real estate constitutes criminal breach of trust or evasion of compulsory execution, and that the Defendant’s act of completing the registration of ownership transfer pursuant to the second sale contract constitutes an act of actively participating in the act of having completed the registration of ownership transfer pursuant to Article 103 of the Civil Act, on the following grounds: (a) as a result of the conclusion of the instant conciliation, C bears the duty of final registration of ownership transfer based on the executive title with respect to each of the instant real estate; and (b) as long as C was unable to avoid the enforcement force by filing a claim objection suit

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the validity of conciliation and the interpretation of conciliation provisions and the act of breach of trust in double disposal of real estate, which affected the conclusion of the judgment. The ground of appeal assigning this error is with merit.

5. Therefore, without examining the remaining grounds of appeal, we reverse the judgment of the court below, and remand the case to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.