Whether the withdrawal of a confession may be implicitly cancelled (affirmative), and whether the revocation of a confession is presumed to have been caused by mistake if it is proved against the truth (negative)

The revocation of a confession in court is not necessarily required to be explicitly stated, but can be implicitly made by asserting the facts contrary to the previous confessions. However, even in this case, the parties who revoke the confessions shall not be presumed to be confessions made by mistake on the grounds that the confessions are caused by mistake, not contrary to the truth, and that the confessions are proved to be contrary to the truth.

Article 261 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Attorney Kim Yong-jin et al., Counsel for the defendant-appellant

New Monopoly Processing Company

Busan District Court Decision 201Na1448 delivered on August 1, 201

Daegu High Court Decision 87Na252 delivered on April 27, 1989

The judgment below is reversed, and the case is remanded to the Daegu High Court.

1. We examine the ground of appeal No. 1 by the Plaintiff’s attorney.

The revocation of a confession in court is not necessarily required to be explicitly stated, but can be implicitly made by asserting the facts contrary to the previous confessions. However, even in this case, the parties who revoke the confessions do not regard the confessions as confessions made by mistake on the ground that the confessions are caused by mistake, except for those contrary to the truth, and that the confessions are proven contrary to the truth.

A summary of the plaintiff's assertion in this case, the plaintiff is also a shareholder of 64,500 shares out of 257,400 shares of the defendant company, who is also a shareholder of 64,50 shares of the defendant company, in collusion with the non-party 2, his/her son, and the non-party 1 decided to dissolve the defendant company at the temporary shareholders' meeting as of June 18, 1985 without a legitimate convocation or resolution, and the provisional shareholders' meeting approved the liquidation of the defendant company at the temporary shareholders' meeting as of September 7, 1985, the minutes of each general shareholders' meeting and completed dissolution and liquidation completion registration. Thus, the defendant is seeking confirmation of the non-existence of each resolution of the above general shareholders' meeting. Accordingly, in a preparatory document dated December 9, 1986, the defendant is also a shareholder of the defendant company and the non-party 1, who is also a shareholder of the defendant company, and it is clear that the plaintiff is a shareholder of the defendant's confession under the name of 198.

However, since the legal brief dated April 28, 1987, which was stated on the date of the first pleading in the court below, the defendant company, as one of the non-party 1's own shareholders registered in the register of shareholders, asserted that the resolution of each general meeting of shareholders is valid because it is not a substantial shareholder, and is contrary to the contents of the confession in the above first instance court, thereby cancelling the above confession. However, even if examining all the evidences of the court below, there is no evidence to find that the confession was against the truth, and there is no evidence to support that the confession was made due to mistake.

Nevertheless, without entirely examining and determining whether the above confession of the plaintiff in the first instance court was valid, the court below rejected the plaintiff's assertion by deeming that the plaintiff is merely a nominal shareholder, and the defendant company is a de facto one-person company of the non-party 1, and thus, rejected the plaintiff's assertion. This constitutes an unlawful act affecting the conclusion of the judgment due to the incomplete hearing and the omission of judgment on the confession in the court, and it constitutes a ground for reversal under Article 12 (2) of the Act on Special Cases concerning

2. Therefore, without examining other grounds of appeal, we reverse and remand the judgment below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Sang-won (Presiding Justice) Lee Jong-won (Presiding Justice)