[1] The case holding that it constitutes an error in an important part of a juristic act to issue a contract guarantee certificate, knowing that the contract amount of a construction work to be supplied by a partner is within the limit of a partner's contract amount, in trust of an application for contract guarantee with false representation in the contract amount

[2] Whether the failure of a specialized construction mutual aid association to verify whether the contract amount of a construction project to be supplied by a partner is within the contract limit prior to issuing a contract guarantee certificate constitutes gross negligence (negative)

[3] The method of indicating the order in a case where the plaintiff who lost the whole court of first instance additionally joined the conjunctive claim in the appellate court and the appellate court maintains the judgment of the first instance as to the primary claim

[4] In the event of negligence in issuing a contract guarantee certificate by a specialized construction mutual aid association, whether the issuance of a contract guarantee certificate by negligence or the cancellation of a contract guarantee contract by mistake constitutes a tort (negative)

[1] The case holding that the issuance of a contract guarantee certificate to a specialized construction mutual aid association is an error in an important part of a legal act, knowing that the contract amount of a construction project to be supplied and received by its members is within the limit of the contract amount of its members, in belief of an application for contract guarantee

[2] Before issuing a contract guarantee certificate, it shall not be deemed that issuing a contract guarantee certificate is a serious negligence, only when an application for contract guarantee was submitted by a member of the Mutual Aid Association, on the ground that it was submitted by a member of the Mutual Aid Association, by receiving a notification of the results of bidding, etc. from a member of the Mutual Aid Association, or by inquiring

[3] In a case where a plaintiff who lost in the first instance court additionally combines the conjunctive claim in the appellate court, and maintains the first instance judgment as to the main claim as it is, the appellate court's decision should be sentenced to "the plaintiff's appeal shall be dismissed" and the first instance judgment shall not be revoked or amended solely on the ground that the conjunctive claim was joined in the appellate court.

[4] In order to establish tort liability liability, illegality of an act other than the tortfeasor's intentional or negligent act is required. Thus, even if a specialized construction mutual aid association did not confirm the actual contract price of a construction project to be supplied and supplied by a partner when issuing a contract guarantee, the Civil Code Article 109 permits the cancellation of declaration on the ground of an error without gross negligence, so long as the specialized construction mutual aid association issued a contract guarantee certificate due to the negligence and issued a contract guarantee certificate or the cancellation of a guarantee contract on the ground of such mistake cannot be deemed unlawful

[1] Article 109 of the Civil Code, Article 9 (1) of the former Specialized Construction Mutual Aid Association Act (repealed by Act No. 5203, Dec. 30, 1996; Article 56 (1) of the current Framework Act on the Construction Industry) / [2] Article 109 of the Civil Code / [3] Articles 235 and 384 of the Civil Procedure Act / [4] Articles 109 and 750 of the Civil Code

[1] [2] Supreme Court Decision 88Da31507 delivered on December 26, 1989 (Gong1990, 361) Supreme Court Decision 94Da25964 delivered on July 26, 1996 (Gong1996Ha, 2581) / [1] Supreme Court Decision 95Da5516 delivered on November 21, 1995 (Gong1996Sang, 47) / [3] Supreme Court Decision 96Da2549, 25456 delivered on June 10, 197 (Gong197Ha, 2125)

Daegu Metropolitan City Urban Development Corporation (Attorney Jeong-il, Counsel for defendant-appellant)

Specialized Construction Financial Cooperative (Law Firm East, Attorneys Park Jong-yang et al., Counsel for the defendant-appellant)

Daegu High Court Decision 96Na3051 delivered on February 13, 1997

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Daegu High Court. The Plaintiff’s appeal is dismissed. The costs of appeal to the dismissed part are assessed against the Plaintiff.

1. We examine the Plaintiff’s grounds of appeal.

A. As to the assertion on mistake

According to the reasoning of the judgment below, on May 30, 194, the plaintiff was awarded a contract amount of KRW 1,052,40,000 on the part of the non-party company's 10-day contract deposit equivalent to KRW 105,240,00,00 on the ground that the non-party company's contract bond was not issued for 100,000,000 under the Construction Business Act in a competitive bidding conducted on the production and installation of prefabricated rooms among the non-party 4 new apartment complexes located in Seongbuk-gu, Daegu-gu, Daegu-gu, and the non-party company's 1994 contract bond was not issued for 50,000,000, which is the contract bond of the non-party company's 100,000,000 that the contract bond was issued for 100,000,000 that the contract bond was issued by the non-party company's 10,000,000

The defendant's mistake concerning the actual contract amount of the construction work that the non-party company is obligated to supply is identical to the plaintiff's assertion. However, if the defendant specified the contract amount in 500,000,000 won when issuing a contract guarantee as determined by the court below, the defendant shall be deemed to have become the subject of a legal act by expressing the motive to the other party as the content of the relevant declaration of intent (see Supreme Court Decision 95Da5516 delivered on November 21, 1995). Thus, as long as such mistake constitutes an error in an important part of the juristic act, the defendant may cancel it.

B. As to the assertion on offsetting negligence

As seen later, as long as the Defendant cannot be deemed liable for damages due to tort against the Plaintiff, the lower court cannot accept the allegation that the lower court recognized the Defendant’s liability for damages and assessed the rate of negligence of the Plaintiff competing with the occurrence of damages as 65% and erred in the misapprehension of legal principles as to mistake of facts and comparative negligence due to a violation of the rules of evidence as alleged in the disposition

2. We examine the defendant's grounds of appeal.

A. As to the assertion on the entries in the order of the court below

The judgment of the court of first instance should be sentenced to "if the plaintiff who lost in the whole court of first instance additionally combines the conjunctive claim in the appellate court, and the appellate court maintains the judgment of the court of first instance as to the primary claim as a result of the trial, it shall dismiss the plaintiff's appeal", and it does not require revocation or alteration of the judgment of the court of first instance on the ground that the conjunctive claim was joined in the appellate court, and the court below's dismissal of the plaintiff's appeal in the disposition does not purport to maintain the judgment of the court of first instance on the ground that the plaintiff's claim for the deposit of the principal claimant is groundless, nor does the conjunctive claim added

B. As to the conjunctive claim

According to the reasoning of the judgment below, the court below determined that the defendant was not liable for damages to the non-party company due to the non-party company's bidding result or the non-party company's fault in receiving damages from the non-party company because the contract amount exceeds 500,000,000 won since the non-party company's contract amount as a member is the contract amount of KRW 500,000,000. According to Article 13 of the defendant's guarantee provision, the defendant must examine the eligibility of the members when applying for a guarantee, and the members shall present contract documents, etc. necessary to examine the eligibility of the defendant. The plaintiff issued a notice of bid result stating the contract amount of KRW 1,052,40,000 to the non-party company, but the defendant issued a contract guarantee certificate to the non-party company, which stated the contract amount of KRW 500,000,000,000 to the non-party company, and the non-party company did not receive damages from the plaintiff.

However, in order to establish liability for damages caused by a tort, illegality of the act is required other than the tortfeasor's intentional or negligent act. Even if the defendant did not confirm the actual contract price of the construction works to be supplied and received by the non-party company in issuing the contract guarantee certificate, as long as Article 109 of the Civil Code permits the cancellation of declaration on the ground of mistake without gross negligence, it cannot be said that the defendant's cancellation of the contract guarantee certificate issued by the non-party company due to a mistake or the mistake thereof

Nevertheless, the court below erred by misapprehending the legal principles as to the establishment of tort and thereby affecting the conclusion of the judgment, which affected the conclusion of the judgment, on the grounds that the court below's failure to perform the contract guarantee on behalf of the non-party company due to negligence constitutes a tort. The part pointing this out in the grounds of appeal is with merit.

4. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by the defendant, the part against the defendant among the judgment below against the defendant is reversed and remanded to the court below. The plaintiff's appeal is dismissed as it is without merit. The costs of appeal as to the dismissal of appeal are assessed against the losing party. It is so decided as per Disposition by the assent

Justices Cho Chang-hun (Presiding Justice)