In a case where a contract is not established as a non-conformity with a doctor, whether a claim for damages due to a negligence in conclusion of a contract may be made by analogical application of Article 535 of the Civil Act, on the ground that the other party knew or could have known that the contract

In a case where a contract is not constituted inconsistent with a doctor’s intention, the claim for damages caused by negligence in conclusion of the contract cannot be made by analogy of Article 535 of the Civil Act on the ground that the other party knew or could have known that the contract may not be concluded, separate from whether the party who suffered losses may claim for the return of unjust enrichment or for tort.

Article 535 of the Civil Act

Counterclaim Plaintiff (Law Firmcheon, Attorneys Cho Jae-soo et al., Counsel for the plaintiff-appellant)

Counterclaim Defendant 1 and one other (Law Firm Inology, Attorneys Song Jong-woo et al., Counsel for the plaintiff-appellant)

Seoul Southern District Court Decision 2014Na9217, 9224 decided January 15, 2015

The judgment below is reversed, and the case is remanded to Seoul Southern District Court Panel Division.

The grounds of appeal are examined.

1. In a case where a contract is not constituted inconsistent with a doctor’s intention, the claim for damages due to negligence in concluding a contract cannot be made by analogically applying Article 535 of the Civil Act, on the ground that the other party knew or could have known that the contract would not be constituted, separate from whether the party who suffered losses could claim for the return of unjust enrichment or for tort.

2. A. Review of the reasoning of the lower judgment and the evidence adopted reveals the following facts.

(1) On June 11, 2013, the person under whose name the name the counter-defendant was named Nonparty 1 by calls to the counter-defendant 1, and stated that he/she would purchase KRW 31 million in total with the money in the middle and high-speed sales, which is the vehicle of the counter-defendant 1.

(2) On June 10, 2013, the name-in-factd person introduced “the Kim head of the division, who had traded his/her name by telephone to his/her male employee on his/her part,” and stated that “the 26 million won high vehicle is to be sold to him/her,” and that “the 26 million high vehicle is to be sold to him/her, and the borrower entered into a contract with the borrower if he/she reported his/her vehicle with his/her bonds and obligations.”

(3) On June 11, 2013, Nonparty 2’s agent Nonparty 2 entered into a contract with Nonparty 1 on the counter-party 1. The sales contract that was not written in the form of the counter-party 1 was prepared, and the account number and account number were printed in the name and the account holder’s name was printed, and the transfer was returned to Nonparty 1. As to this, Nonparty 1 sent Nonparty 2 the account in the name of Nonparty 3 to Nonparty 2, and accordingly, Nonparty 2 wired KRW 26 million to the account in the name of Nonparty 3.

(4) However, the non-resident did not remit KRW 31 million, which was promised to the counter-defendant 1. Accordingly, the counter-defendant 1 and Nonparty 2 was alleged to have been subject to fraud by the immediately police station. The police’s investigation result revealed that the non-party 3’s account, who was transferred KRW 26 million, was the hostile account and the remitted money was all withdrawn.

B. The lower court, citing the first instance judgment, determined as follows.

The instant sales contract concluded between the counterclaim Defendant and the counterclaim was not effective as a inconsistency with the intention to enter into the instant sales contract. The counterclaim Defendant was unaware of the fact that the instant sales contract could not be concluded at the time of the conclusion of the instant sales contract. Therefore, Article 535 of the Civil Act applies mutatis mutandis, and the counterclaim Defendant is liable to compensate for the damages incurred by the counterclaim due to the negligence in concluding the instant sales contract. The amount of damages is KRW 26 million that the counterclaim trusted the establishment of the instant sales contract and remitted to Nonparty 3.

C. However, examining the above facts in light of the legal principles as seen earlier, in this case where the contract cannot be deemed to have been effective due to the inconsistency between the counterclaim Defendant and the counterclaim, Article 535 of the Civil Act shall not be deemed to apply mutatis mutandis to the counterclaim that the counterclaim Defendant is liable for damages due to the conclusion of the contract. Nevertheless, the lower court erred by misapprehending the legal principles on the liability under Article 535 of the Civil Act, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point

3. However, in full view of the above facts and the following circumstances revealed by the evidence duly admitted by the lower court, it is reasonable to view that the counterclaim Defendant 1 failed to perform the duty of care required during the process of concluding the contract, thereby aiding and abetting the illegal acts of those who died in the name of those who died. In addition, in full view of the claims asserted by the counterclaim up to the closing of argument in the lower court based on the record, the allegation by the counterclaim can be deemed to include the same purport. Therefore, the lower court after remanding the case, clearly stated that it is necessary to examine whether the counterclaim Defendant 1 is liable as a joint tortfeasor by aiding

(1) Since the counterclaim Defendant agreed to the parties to the sales contract, such as preparing the instant sales contract and delivering documents necessary for the registration of the transfer of a vehicle, etc., he/she should pay attention to the counter-party so that the counter-party, who is the counter-party, does not have any wrong trust from the speech and behavior of the counter-party.

(2) However, at the time, Nonparty 2’s agent Nonparty 2 did not pay the price to the counterclaim Defendant, but remitted the price to a third party. Moreover, Nonparty 2 asked Nonparty 1, who was known by the counterclaim Defendant 1, seeking money to the account in the name of Nonparty 3, rather than Nonparty 1, who was the name of the Nonparty 1, and sought consent or consent from the counterclaim Defendant 1.

(3) If so, as a counter-defendant 1, the above remittance was limited to the transaction relationship between the counter-party and the non-party in the name of the non-party in question, the non-party 2 should have been asked about why he would make such a question. Whether the content of the settlement of claims and obligations on the part of the non-party in question and the counter-party in the name of the non-party in the form of the instant purchase price is not intended to link the contents of the settlement of claims and obligations on the part of the non-party in the form of the above remittance with the instant purchase price, and whether the counter-party in the form of the above remittance

(4) Nevertheless, the counterclaim Defendant 1 responded to Nonparty 1’s “in-depth” only, and it seems that such an act was a critical cause for Nonparty 2 to form the trust that the said remittance was valid as a payment method of the purchase price of this case.

4. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Jae-hyung (Presiding Justice)