In a case where Party A, a real estate owner, filed a lawsuit against Party B seeking cancellation, etc. of ownership transfer registration while a real estate sales contract entered into with Party B was a donation, and was revoked or withdrawn by an expression of intent by fraud or mistake, and subsequently filed an application for an adjudication on unconstitutionality of Article 555 of the Civil Act as to the interpretation that prohibition of withdrawal of a donation contract by document with grounds for invalidation or revocation of Article 55 of the Civil Act, the case dismissing the said application on the grounds that Article 55 of the Civil Act and Article 555

In a case where Party A, a real estate owner, filed a lawsuit against Party B seeking cancellation, etc. of ownership transfer registration on the ground that the real substance of a real estate sales contract entered into with Party B is a donation and constitutes a declaration of intent by fraud or mistake, and thereafter, filed an application for adjudication on the unconstitutionality of Article 555 of the Civil Act concerning the interpretation that prohibition of withdrawal of a written contract with the grounds for invalidation or cancellation of Article 555 of the Civil Act is prohibited, the case holding that Article 55 of the Civil Act limits the cancellation of a donor in the case of a written donation by allowing Party B to rescind a written donation without document, but Article 55 of the Civil Act limits the cancellation of a donor in the case of a written donation; however, a rescission that is restricted pursuant to Article 55 of the Civil Act means a withdrawal that is not a statutory cancellation of the original meaning stipulated in Article 543 of the Civil Act, and thus, it does not restrict the exercise of the right to claim invalidation or revocation on the ground that there are grounds for invalidation or cancellation in the declaration of intent of donation.

Articles 23, 27 of the Constitution of the Republic of Korea, Article 41(1) of the Constitutional Court Act, Article 107(1), 109(1), 110(1), 55, and 558 of the Civil Act

Plaintiff (Law Firm Light High, Attorneys Kim Yong-hoon et al., Counsel for the plaintiff-appellant)

Gwangju District Court Decision 2013Na13548

The motion for adjudication on the constitutionality of the instant case is dismissed.

In accordance with the proviso of Article 107(1), Article 109(1) and Article 110(1) of the Civil Act, an inquiry shall be requested as to whether “in writing” violates Articles 23 and 27 of the Constitution, unless “in writing” includes even a donation contract that may be invalidated or cancelled under Articles 107(1) and 110(1) of the Civil Act.

1. Case summary

A. In the case of voluntary auction of real estate held by the Gwangju District Court 99 another Special Metropolitan City 60373, August 14, 2001, the applicant initially owned by Nonparty 1, and paid the successful bid price and completed the registration of transfer of ownership as the receipt No. 16976, Sept. 17, 2001, which was completed on September 17, 2001.

B. On April 15, 2003, the applicant entered into a sales contract with Nonparty 2 (Defendant in the instant case) with respect to the instant real estate amounting to KRW 5,60,000 (hereinafter “instant sales contract”). Based on this, the applicant completed the ownership transfer registration (hereinafter “instant transfer registration”) with the Jeju District Court No. 8765 on April 28, 2003 to Nonparty 2.

C. At the time of the registration of transfer of ownership in this case, the applicant and Nonparty 2 entered the purchase price of KRW 5.6 million with the purchase price as KRW 5.6 million and the sales contract approved by the State Mayor was attached (hereinafter “the instant sales contract”).

D. The applicant asserted that the instant sales contract was a donation, and that the actual donation was an expression of intent by fraud under Article 110(1) of the Civil Act, or an expression of intent by mistake under Article 109(1) of the Civil Act, and thus revoked or rescinded (e.g., revocation), and filed a lawsuit primarily against Nonparty 2 seeking cancellation of the ownership transfer registration of the instant case and seeking payment of the purchase price under the instant sales contract.

2. Provisions of the Acts subject to the proposal;

Article 55 (Contract of Gift not in Writing and its Rescission) Where the intention of gift is not indicated in writing, either party may rescind it.

3. Applicant's assertion

A. The applicant asked Nonparty 2’s husband Nonparty 3 to jointly and severally stand the debt of the loan to Nonparty 1’s non-party 3, a branch of the non-party 2, and upon the above request, the non-party 3 jointly and severally guaranteed the debt of the loan to the non-party 1’s third branch of the loan. However, although the non-party 3 did not discharge the above debt of the loan, the non-party 3 requested the applicant for compensation by deceiving himself as if he was discharged. The applicant had completed the registration of transfer of ownership in this case to the non-party 2, the wife of the non-party 3. Therefore, the instant sales contract is a donation contract, and the instant sales contract is a written donation contract

B. Article 555 of the Civil Act provides that a gift not based on a written document may be withdrawn at any time without a limitation of the exclusion period, while a written donation may not be withdrawn. According to the foregoing interpretation, the right of withdrawal of the donor shall be deprived in cases where there is any defect in the expression of intent among the written donation contracts.

C. As a result of the interpretation of Article 555 of the Civil Act, the applicant became unable to withdraw the instant sales contract, which is a written donation contract.

D. As such, interpreting Article 555 of the Civil Act as above, it infringes on the donor’s right to property and right to trial by depriving of the donor of his/her right to withdrawal right in cases where the donation contract becomes invalid due to a bad declaration of intention, and maintaining the donor’s expression of intent of gift by mistake or coercion of the other party’s intent of withdrawal.

E. The limited constitutional claim claiming the unconstitutionality of a specific interpretation or application of a legal provision is lawful, and the propriety of the applicant's primary claim in the relevant case is different depending on whether the interpretation of Article 555 of the Civil Act is unconstitutional. Thus, whether the interpretation of Article 555 of the Civil Act is unconstitutional or not is the premise of the relevant judgment.

F. Therefore, Article 55 of the Civil Act includes, in writing, “in the form of a document,” the proviso of Article 107(1), Article 109(1), and Article 110(1) of the Civil Act, a gift agreement that may be invalidated or cancelled under the proviso of Article 107(1) of the Civil Act shall be

4. Presumption of the judgment;

A. Whether Article 555 of the Civil Act is a premise for the judgment

1) The applicant asserts that, on the premise that the instant contract was a substantial donation contract, and that the said contract was concluded by Nonparty 3’s deception, it is unconstitutional to interpret Article 555 of the Civil Act as prohibiting the rescission of the said contract by document with grounds for invalidation or cancellation of Article 555 of the Civil Act.

2) First, as to whether the instant sales contract was a gift contract concluded by deception, it is insufficient to recognize that the instant sales contract was concluded by deception or that it was a gift contract, and there is no other evidence to prove otherwise.

3) Next, the applicant asserts the cancellation of the instant sales contract in the instant case. We examine whether the claim to nullify the gift contract or the exercise of the right to cancel the gift contract is limited by Article 555 of the Civil Act.

Article 555 of the Civil Act provides that a donor may be released from a written gift, thereby restricting the rescission of the donor in the case of a written donation. However, a rescission to be restricted pursuant to the said legal provision refers to a withdrawal not by statutory rescission within the original meaning prescribed under Article 543 of the Civil Act. Therefore, the limitation pursuant to Article 555 of the Civil Act is limited to the withdrawal of a donor’s declaration of intent, and it is not limited to the assertion of invalidation or the exercise of the right of revocation on the ground that the declaration of intent of donation

Therefore, even if the “in writing” under Article 555 of the Civil Act includes a donation contract that may be invalidated or revoked under the proviso of Article 107(1), Article 109(1) and Article 110(1) of the Civil Act, as alleged by the applicant, the applicant cannot exercise his/her right to assert invalidation or revocation, and thus, it cannot be said that whether such interpretation is unconstitutional or not under Article 555(b) of the Civil Act is the premise of the relevant case.

4) Lastly, since the cancellation of a contract of donation by document is restricted pursuant to Article 555 of the Civil Code, the claim of the applicant is examined with the argument that the unconstitutionality of Article 555 of the Civil Code itself exists in the trial.

As seen earlier, it cannot be recognized that the instant sales contract was a gift contract, and even if the gift contract was already implemented, the rescission under Article 555 of the Civil Act is prohibited in accordance with Article 558 of the Civil Act as to the part already performed. The applicant cannot exercise the right of rescission against Nonparty 2 pursuant to Article 555 of the Civil Act. Thus, it cannot be said that the determination of the unconstitutionality of Article 555 of the Civil Act is the premise of the relevant case’s trial.

5) Ultimately, Article 555 of the Civil Act and its interpretation cannot be recognized as the premise of the instant judgment.

B. Whether to recognize the premise of statutory construction

1) Article 103 of the Constitution provides, “The law officer shall judge independently according to his conscience and in accordance with the Constitution and laws,” and Article 107(1) of the Constitution provides, “Where the law is the premise of a trial on whether it violates the Constitution, the court shall judge it by its request to the Constitutional Court.” Article 41(1) of the Constitutional Court Act provides, “Where the law is the premise of a trial on whether it is in violation of the Constitution, the court in charge of the case (including the military court; hereinafter the same shall apply) shall, ex officio or upon request of the parties, request the Constitutional Court to decide whether it is unconstitutional.”

2) The applicant’s interpretation that “in writing” under Article 555 of the Civil Act includes “in accordance with the proviso of Article 107(1), Article 109(1), and Article 110(1) of the Civil Act also a gift contract that may be invalidated or revoked under the proviso of Article 107(1) of the Civil Act is the premise of the pertinent judgment. As such, this case’s application is filed under the premise that such interpretation is the premise of the relevant judgment.

In the pertinent case, the applicant asserts the withdrawal of the gift contract under the premise that the contract of this case is a gift contract, and the withdrawal is limited by Article 555 of the Civil Act. Thus, Article 558 of the Civil Act does not exist, and where the contract of this case is recognized as a gift contract, the court of this case has the constitutional obligation to determine whether the withdrawal satisfies the requirements under Article 555 of the Civil Act, and therefore, it can be the premise of the judgment of this case.

However, in applying Article 555 of the Civil Act, the interpretation of the proviso of Article 107(1), Article 109(1), and Article 110(1) of the Civil Act as to “in writing” includes a gift contract that can be invalidated or cancelled under the proviso of Article 107(1), Article 109(1) of the Civil Act is merely a matter of determination according to legal conscience and does not have any legal obligation to follow the said interpretation to the judge of the relevant case ( even if the above interpretation is established by the Supreme Court precedents, the court of the relevant case cannot be deemed to have a legal obligation to follow the said interpretation, regardless of the factual nature of the court of the relevant case). Therefore, the interpretation of the legal provision as asserted by the applicant cannot be viewed

3) As a norm, the law as a norm is bound to be defined in general and abstract, and in the case of applying the law to individual and specific legal disputes, there is a view that recognizes the premise of a judgment on the interpretation of the law on the grounds that the legal provision and the interpretation of the law can not be separated from each other.

A) The law is specifically realized through the process of enactment and enforcement, and going through the process of statutory interpretation in application to individual and specific legal disputes is merely a process through which a judge passes through the process of enforcing the law (such statutory interpretation is based not only on a judge but also on the premise of enforcing the law in all areas including the administration). It would not be the same for the sole reason that the application of the law goes through the process of statutory interpretation to regard the same legal interpretation as the law as the law does not accord with the enactment of the law and its enforcement.

According to the logic of the above view that deeming the same legal interpretation as that of the law, the interpretation of the Constitution and the Constitution are the same, and this conclusion leads to the conclusion that the enactment of the Constitution and the enforcement of the Constitution are identical. This conclusion is clear that the right to enact the Constitution is held by the people and grants the power to enforce the Constitution to each agency of the State. Even if the Constitutional Court has the power to interpret the Constitution, the interpretation of the Constitution cannot be deemed as the enactment or amendment of the Constitution, as long as the court interpretation of the law cannot be seen as the enactment or amendment of the law, it cannot be deemed as the same as the legislation that the National Assembly enacted by the citizens

B) One of the grounds for the argument that the interpretation of the law and the provision of the law is not separated, one of the above opinions argues that Article 43 of the Constitutional Court Act requires the court to state “the law or the provision of the law interpreted as the unconstitutionality” and “the grounds for interpreting the unconstitutionality” in the written request for adjudication on the constitutionality of the law.

However, even according to the above provisions, matters to be stated in the written request for adjudication on the unconstitutionality of a law are not the interpretation of a law, but the law itself. However, considering that there is no authority to determine the unconstitutionality of a law, the term “an interpretation” appears to have been used in the meaning of “decision to propose the unconstitutionality of a law.” The court does not make a request for adjudication on the constitutionality of a law

It is clear that the Constitutional Court’s decision on the constitutionality of a court’s unconstitutional proposal is not a unconstitutionality of “an interpretation on the constitutionality of a law”, namely, “an interpretation on the constitutionality of a law,” which is expressed by the requesting court on the grounds of the proposal. The above assertion argues that the interpretation of a unconstitutionality is the same as “unconstitutionality of interpretation” and thus, the opinion presented by the court while making a proposal on the constitutionality of a law, which also leads to the outcome that the “unconstitutionality” of “an opinion on the constitutionality of a law,” not “an opinion on the constitutionality,” but “an opinion on the constitutionality,” which

C) In addition, the above opinion argues that in order for the Constitutional Court to exercise its exclusive jurisdiction, it is necessary to judge whether the legal provision, which is the premise of the decision in the relevant case, is in violation of the Constitution. In this case, the interpretation and application of the Constitution, which is a control norm, and the interpretation and application of the legal provision in the specific norm control procedure, should not be examined, and that the interpretation and application of the legal provision in the specific norm control procedure is not the authority of the court but the inherent authority of the Constitutional Court.

However, since the Constitution has the power to decide on the constitutionality of a law in a court, and the power to interpret and apply the law which is the premise of a trial by granting the judicial power to the Constitutional Court, the power to interpret and apply the Constitution belongs to the Constitutional Court, even though the contents and scope of application of the law are determined due to the statutory interpretation of the court, it is consistent with the intent of the person with the constitutional authority to enact the law. Even if the contents and scope of application of the law are determined due to the statutory interpretation of the court, the Constitutional Court has the authority to determine only the unconstitutionality of the law determined by the interpretation of the court. The control of the normative control and the application of the norm should be distinguished, and the constitutional procedure is only the norm control procedure, not the application control procedure of

D) Also, the above opinion argues that the determination of unconstitutionality of the interpretation of law is an expression of self-determination and respect for legislative power.

However, in light of the purport of the Constitution that allows the Constitutional Court to actively check the legislative power by granting the power of adjudication on constitutionality to the Constitutional Court, which is contrary to the lack of checks on the legislative power of the judiciary, there is no difference between the removal of the existence of the Constitutional Court by abandoning the power of control over the legislative power of the Constitutional Court granted by the Constitution and reducing the role of the Constitutional Court as part of the judicial power, which is the interpretation of the law. The Constitution, even though the Constitutional Court grants the duty of control over the legislative power to the Constitutional Court, would thereby protect the legislative power from the judicial power.

In addition, on the other hand, by judging the unconstitutionality of the interpretation of the law and making a decision of limited unconstitutionality, it leads to the result of the legislation without actually going through the legislative procedure. This result cannot be denied that it is an infringement of the legislative right, not the self-determination and respect of the legislative

5. Conclusion

Therefore, the petitioner's application of this case is inappropriate as it cannot be recognized as the premise of the trial, and it is so decided as per Disposition.

Judges Yellow-Pung (Presiding Judge) (Presiding Justice)