[1] The degree of agreement between the parties for the formation of a contract

[2] Matters that should include the expression of intent to offer

[3] In a case where: (a) the National Tax Service filed a lawsuit claiming revocation of a disposition of imposition of corporate tax and additional tax against the National Tax Service against the company Gap, which exported gold bullion in the form of a gold bullion purchased domestically; and (b) the judgment of loss became final and conclusive after the lawsuit was filed by the National Tax Service against the National Tax Service; (c) the actual operator of the company Eul, who invested in the gold export business of the company Eul, was Byung; and (d) Byung agreed to refund the investment amount due to the failure of the lawsuit against the company Eul by asserting that the company Eul agreed to refund the investment amount due to the failure of the lawsuit, the case holding that it cannot be concluded that the above agreement was made between the company

[1] In order to establish a contract, the agreement between the parties is required to be reached, and such agreement is not required with respect to all matters that form the content of the contract in question, but there is a specific agreement with the parties on the essential matters or important matters, and at least an agreement on standards, methods, etc. that may specify them in the future. In a case where no agreement or agreement is reached, it is reasonable to deem that the contract has not been concluded, barring any special circumstances.

[2] An offer, which is a legal requirement for the formation of a contract, must be a specific and conclusive declaration that is established immediately when the offer accepts the offer. Therefore, it is necessary to include matters to the extent that the content of the contract can be determined.

[3] In a case where: (a) the National Tax Service failed to impose corporate tax and additional tax on Company A who exported gold bullion in the form of a gold bullion purchased in Korea to a foreign country; (b) Company B filed a lawsuit claiming revocation of imposition of corporate tax and other corporate tax against the National Tax Service; and (c) Company B, who invested in the gold export business of Company B, sought the payment of money against Company B by asserting that Company B agreed to refund the investment amount due to the failure of the lawsuit; and (d) Company B did not lose, the case held that Company B did not have the authority to collect the said agreement on behalf of Company C, on the sole basis of the contents of the recording of the conversation and telephone conversations between Company C and C, and that Company C did not have the authority to collect the money attached to the National Tax Service according to the failure of lawsuit; and (b) the said Plaintiff’s investment in the gold export business could not be readily concluded as the subject of the above agreement even if it did not have the authority to recover the money at the time of the lawsuit.

[1] Article 105 of the Civil Act / [2] Article 527 of the Civil Act / [3] Articles 105 and 527 of the Civil Act

[1] Supreme Court Decision 200Da51650 Decided March 23, 2001 (Gong2001Sang, 966) Supreme Court Decision 201Da102080 Decided June 28, 2012 / [2] Supreme Court Decision 2001Da53059 Decided April 11, 2003 (Gong2003Sang, 1151), Supreme Court Decision 2003Da41463 Decided December 8, 2005 (Gong2006Sang, 98)

Plaintiff

Defendant (Law Firm, Kim & Lee LLC, Attorneys Hong-tae et al., Counsel for the defendant-appellant)

Busan High Court Decision 2015Na54240 decided May 31, 2017

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

The grounds of appeal are examined.

1. In order for a contract to be concluded, the agreement between the parties is required to be reached, and such agreement is not required with respect to all matters that constitute the content of the contract in question, but there is a specific agreement with regard to its essential elements or important matters, or at least an agreement with respect to standards and methods that may specify the future in detail. In the absence of such an agreement or agreement, it is reasonable to deem that the contract has not been concluded, barring any special circumstances (see Supreme Court Decisions 2000Da51650, Mar. 23, 2001; 201Da102080, Jun. 28, 2012; 201Da102080, which are legal requirements for the formation of the contract in question, should be specific and conclusive declaration of intent that the contract can be concluded immediately if it accepts it (see Supreme Court Decisions 201Da530534, Apr. 11, 2003; 205Da4203634, Apr. 28, 2003).

2. The reasoning of the lower judgment and the record reveal the following facts.

A. The documentary system business (hereinafter “Actain”) is a corporation for the purpose of export business of precious metals, etc., and after purchasing gold from February 9, 2009 to June 201, it exported gold bullion in the form of Actain to Hong Kong. The Plaintiff invested KRW 740,000,000 in total from February 5, 2009 to March 16, 2009 in the Actaintainment System.

B. On September 6, 2010, the head of the Sung-dong Tax Office deemed that the Cretain’s system applied excessive purchase price for the business year 2009 and reported corporate tax, thereby imposing KRW 3,826,95,790 on the Cretain’s business year of 2009. Accordingly, the Cretain’s system failed to file a lawsuit seeking revocation of the disposition of imposition, such as the above corporate tax, as Seoul Administrative Court 2012Guhap2287, but the Seoul High Court appealed to 2013Nu15981, but the appeal was dismissed and the said judgment of loss was finalized on February 10, 2015 (hereinafter “related administrative case”).

C. Meanwhile, on June 2010, the National Tax Service seized KRW 3.5 billion in cash at a credit cooperative by searching and seizing the paper office of the Accomman System’s senior secretary room.

3. Based on the above factual basis, the lower court partially accepted the Plaintiff’s second conjunctive claim against the Defendant, on the following grounds: (a) the Defendant, the actual operator of the documentary management business, agreed to pay KRW 350 million in the event that the documentary management business won in favor of the Plaintiff in the relevant administrative case related to the Plaintiff’s investment amount; and (b) the judgment against the documentary management business was final and conclusive; and (c) the Defendant was liable to pay KRW 200 million in the event that the documentary management business lost the Plaintiff (hereinafter “instant agreement”); and (d) the Defendant was obligated to pay the Plaintiff the Plaintiff the amount of KRW 20 million and its delay damages.

A. The Defendant, while substantially operating the documentary management system business, was running gold export business.

B. In a criminal case in which the Plaintiff filed a complaint against the Defendant on suspicion of embezzlement, etc., the co-defendant 1 of the lower court stated that, around December 2009, the co-defendant 1 of the lower court (hereinafter “non-party 1”) suffered considerable damage in gold export transactions due to changes in international market prices, and that, at the time, the Plaintiff would recover KRW 200,000,000, the Plaintiff would have settled the Plaintiff’s investment amount until the time. However, the Plaintiff did not find any such fact, and was placed in the Accom

C. The Defendant also stated that the settlement amount to be paid to the Plaintiff in the above criminal case would not amount to KRW 300 million.

D. Around July 2011, the Defendant agreed to pay KRW 350 million to the Plaintiff through Nonparty 2, the Cho Jae-man, through the Plaintiff, in the relevant administrative case, if he/she won in favor of the Plaintiff, and KRW 200 million if he/she lost.

4. A. However, examining the following facts and circumstances revealed by the record in light of the legal principles as seen earlier, it is difficult to readily conclude that the agreement between the Plaintiff and the Defendant existed.

1) First of all, the lower court deemed that the Defendant made the instant agreement to the Plaintiff via Nonparty 2 on July 201 based on the recording recording of the conversations and the contents of telephone conversations between Nonparty 2, Defendant, and Nonparty 1 (Evidence No. 14-1, 2, and 15-1). However, even upon examining the record, Nonparty 2 urged the Defendant to recover the investment amount of Nonparty 3’s father around July 201, and did not demand the return of the Plaintiff’s investment amount. Nonparty 2 did not request the Defendant to return the Plaintiff’s investment amount. Nonparty 2 to the effect that the Defendant would give 100% of the expenses except for the case where the Defendant won the relevant administrative case to Nonparty 2, and 60% of the expenses even after the mistake, but it is difficult to conclude that the subject of return of investment and attribution is the Defendant and the Plaintiff in light of the above contents of conversation. At that time, the Defendant also notified Nonparty 2 of the order of the Plaintiff.

2) The dialogue on the specific amount of KRW 350 million when winning the case acknowledged by the lower court, and KRW 200 million when the loss was incurred, is only revealed in the telephone conversation with Nonparty 1 (Evidence A No. 15) around March 2013 by Nonparty 2. In other words, Nonparty 2’s “small father (Plaintiff)” refers to the difference in the amount of money regardless of the outcome of the present lawsuit, and the president of the National Assembly (No. 1) did not do so. Nonparty 1 gives KRW 200 million even if the result of the non-requirements was 350 million, and Nonparty 1 responded to the purport that Nonparty 1 “I” is “I”.

3) The fact that Defendant or Nonparty 1 her friended to the effect that he would return the investment money according to the success of the relevant administrative case is expected to have been able to recover part of the money seized by the National Tax Service according to any such success or failure. However, the Plaintiff invested in the Acccom Human System, and the Plaintiff of the relevant administrative case also is also the entity that can recover the money seized when he/she won the case with the Accom Human System. Therefore, even if there was a promise similar to the instant agreement, it is difficult for the entity that the return was the Defendant.

4) Furthermore, there is no evidence suggesting that Nonparty 2 was an agent of the Plaintiff or an authority to conclude the instant agreement with the Defendant on behalf of the Plaintiff.

B. Nevertheless, the lower court affirmed the existence of the instant agreement on the grounds of unclear dialogue recorded in the recording book. In so doing, it erred by misapprehending the legal doctrine on the formation of a contract, etc., thereby adversely affecting the conclusion of the judgment. The Defendant’s ground of appeal assigning this error is

5. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded 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.

Justices Jo Hee-de (Presiding Justice)