(영문) 대법원 2016.8.18.선고 2014다74155 판결

The part of the lower judgment against the Plaintiff (Counterclaim Defendant) regarding the conjunctive claim among the lower judgment is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal is dismissed.

Reasons

The grounds of appeal are examined.

1. As to the ground of appeal on the claim of the principal lawsuit

A. When the interpretation of a party’s intent expressed in a disposition document is at issue, it shall be reasonably interpreted in accordance with logical and empirical rules by comprehensively taking into account the content of the language and text, the motive and background leading up to the agreement, the purpose to be achieved by the agreement, the party’s genuine intent, etc. (see, e.g., Supreme Court Decisions 2002Da6753, Jun. 11, 2002). In particular, where the content of a contract claimed by one party imposes a serious liability on the other party, the content of the language and text shall be more strict (see, e.g., Supreme Court Decisions 95Da6465, May 23, 1995; 200Da72572, May 24, 2002).

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

(1) (A) On October 12, 2006, the Plaintiff (Counterclaim Defendant; hereinafter referred to as the “Plaintiff”) and the Defendant (Counterclaim Plaintiff; hereinafter referred to as the “Defendant”) concluded a sales contract with the Defendant (hereinafter referred to as the “instant sales contract”) whereby the Plaintiff sells 48,397m of land (hereinafter referred to as “instant land”) in the form of 900 million won prior to the division to the Defendant.

(B) At the time of the instant sales contract, the instant land was in a state where no access road connected to the public service, and on its ground, 11 graves (hereinafter “instant grave”) were installed.

(C) In addition to the proviso clause of the sales contract of this case, the Plaintiff and the Defendant agreed on the instant grave and the instant road. Article 1 (2) of the proviso clause provides, “When the Defendant needs, the graveyard buried on the instant land shall be immediately affected by the Plaintiff (only when the Plaintiff does not change the graveyard within one month from the Defendant’s request for removal, penalty equivalent to the down payment and penalty of KRW 50,000 per day shall be paid to the Defendant).” Article 2 (3) of the proviso clause provides, “When the above access road (hereinafter referred to as the “instant access road”) is completed, the Defendant shall pay the balance,” and Article 3 (4) of the proviso clause provides, “When the Plaintiff does not complete the above access road within two months from the date of the instant sales contract, the Plaintiff waives its ownership to the instant land and transfers its ownership to the Defendant.”

(2) (A) On October 13, 2006, the Defendant paid the down payment of KRW 100 million to the Plaintiff. On October 16, 2006, the Defendant completed the provisional registration of the right to claim transfer of ownership (hereinafter “the provisional registration of this case”) on the instant land on October 16, 2006.

(B) On the same day, the Defendant paid intermediate payment of KRW 300 million to the Plaintiff. On November 2, 2006, the Seoul Central District Court filed an application for mediation with the Plaintiff as Seoul Central District Court 2006 money 1553, and on November 2, 2006, the conciliation was concluded that “the Plaintiff fulfilled the principal registration procedure based on the provisional registration of the instant land to the Defendant” on the conciliation date.

(C) The Defendant completed the registration of ownership transfer based on sale on November 2, 2006, pursuant to the above protocol on December 19, 2013.

(3) (A) On the other hand, the Plaintiff did not open the access road to the instant grave pursuant to the proviso clause, and the Defendant sent the instant grave to the Plaintiff around March 6, 2007, by content-certified mail (No. 3) to the effect that the Plaintiff immediately relocate the instant grave and demanded packaging of the access road to the instant grave, and that the said mail reached the Plaintiff around that time.

(B) On November 2012, the Plaintiff moved to the instant grave. As of the date of the closing of argument in the lower judgment, the Plaintiff installed a bridge on the access route (hereinafter referred to as “the adjacent access route”) in the Annex 1.C of the lower judgment located between the instant land and the instant land as of the date of the closing of argument in the lower court, and the access route (hereinafter referred to as “the access route”). If a bridge is installed in the part indicated in the Map 1.B, it is possible to pass to the instant adjacent access road.

C. Examining the above facts in light of the legal principles as seen earlier, the following circumstances are revealed.

(1) According to the proviso clause clause clause clause clause 3, the Plaintiff is obligated to open the access road of this case from October 12, 2006 to December 12, 2006, which is the date of the instant sales contract, and the Defendant agreed to pay the remainder of KRW 500 million upon completion of the access road of this case. Thus, the Plaintiff’s non-establishment of the access road of this case and the Defendant’s obligation to pay the remainder of the access road of this case can be acknowledged as having a quid pro quoous meaning.

In addition, considering the contents of the instant sales contract and the location of the instant land, the Plaintiff’s obligation to open the access road of this case ought to be established at an appropriate position that connects the instant land with a width of 5 meters. Only on the ground that the specific location of the access road of this case is not specified, the agreement on the obligation to open the access road of this case cannot be deemed null and void, or that the Plaintiff’s obligation to open the access road of this case is not specified.

(2) In full view of the language and text of the proviso of Paragraph (4) of the proviso to the effect that if the Plaintiff did not open the access road of this case within 2 months from the date of the instant sales contract, the Plaintiff renounced ownership of the land of this case and transferred it to the Defendant, the motive and background leading up to the formation of the agreement, the objective to achieve the agreement, the parties’ genuine intent, etc., the proviso of Paragraph (4) cannot be deemed to be a penalty provision on the grounds that the proviso of Paragraph (4) does not indicate any penalty or penalty differently from the proviso of Paragraph (2). However, if the Plaintiff and the Defendant did not open the access road of this case within 2 months from the date of the instant sales contract, it is reasonable to interpret that the Plaintiff and the Defendant agreed to the effect that the Plaintiff would give up the remaining claim against the Defendant and immediately transfer the ownership of the land of this case to the Defendant. In addition, the Plaintiff

Ultimately, in the event that the Plaintiff and the Defendant failed to open the access road of this case by December 12, 2006 through the proviso clause clause clause clause (4), the ownership of the land of this case was transferred without the access road, and the Defendant terminated the execution of the sales contract by deeming that the purchase price was paid in full by KRW 400 million excluding the balance, and furthermore, the Defendant is liable to open the access road of this case and connect the land of this case with the land of this case by using the balance equivalent to the remainder exempted from the Defendant’s payment, and the Plaintiff agreed to the effect that the Plaintiff cooperates with the land of this case. In addition, taking into account the above premise, it is difficult to view that the content of the proviso clause (4) of the purport to waive the balance claim as well as the content of the proviso clause in the judgment below is null and void in accordance with

(3) However, as the Plaintiff failed to perform its duty to open the access road of this case by December 12, 2006, barring any special circumstance, the Defendant’s obligation to pay the remainder and the Plaintiff’s obligation to open the access road of this case were extinguished.

Meanwhile, the circumstance that the Defendant sent the Plaintiff a content-certified mail demanding the packaging of the access road of this case on or around March 6, 2007 is difficult to view that the Defendant suspended the period during which the obligation to open the access road of this case under Articles 3 and 4 of the proviso to the Plaintiff was due, and it is also difficult to view that the Defendant had an effect on the termination of the obligation to pay the remainder that has already occurred.

D. The ground of appeal disputing the lower court’s fact-finding is practically a fact-finding court.

This is merely a ground for the choice of evidence belonging to the free evaluation of evidence and the judgment on the value of evidence, and thus cannot be accepted.

In addition, examining the reasoning of the judgment below in light of the above circumstances and the legal principles as seen earlier and the relevant legal principles as seen earlier, and the evidence duly admitted, the court below erred in the misapprehension of the proviso clause (1) and the part that recognized that the Plaintiff still remains liable to open the access road of this case despite the Defendant’s termination of the obligation to pay the remainder pursuant to the proviso clause (4) on the premise that (2) the agreement on the proviso clause (3) and (4) is valid; and (3) the court below dismissed the Plaintiff’s claim seeking the remainder payment by recognizing that the Plaintiff’s obligation to pay the remainder payment was extinguished due to the Plaintiff’s non-performance of the obligation to open the access road of this case; and (4) contrary to the allegations in the grounds of appeal, the court below did not err in the misapprehension of legal principles as to delayed liability, interpretation of intent, effect of penalty and violation of Article 103 of the Civil Act, or by exceeding the bounds of the principle of free evaluation of evidence.

2. As to the ground of appeal on the part on the claim for the construction of a bridge among the preliminary claim for counterclaim

The lower court, on the premise that the Plaintiff continued to bear the duty to open the access road of this case as stipulated in the proviso clause clause (3), determined that the Plaintiff was obligated to install a bridge with a width of 5 meters in the part indicated in [Attachment 1.B] of the lower judgment on the ground as stated in its reasoning.

However, as seen above, it is reasonable to view that the Defendant’s obligation to pay the remainder has ceased to exist under the proviso clause (4), and that the Plaintiff’s non-existence of opening the access road of this case

Therefore, on a different premise, the lower court erred by misapprehending the legal doctrine on the interpretation of a disposal document, thereby failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the part against the Plaintiff regarding the conjunctive claim among the judgment below is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.