[1] Court's explanation and cadastral duty as to legal matters

[2] The method of interpreting a case where the contents of pleading are written in the protocol but their meaning is not clear

[3] Where the presumption of the authenticity of a seal affixed on a private document is reversed

[1] Article 136 (1) and (4) of the Civil Procedure Act / [2] Articles 154 and 158 of the Civil Procedure Act / [3] Article 358 of the Civil Procedure Act

[1] Supreme Court Decision 2005Da37185 Decided January 26, 2006, Supreme Court Decision 2007Da29706 Decided September 6, 2007, Supreme Court Decision 2009Da83599 Decided February 11, 2010 (Gong2010Sang, 557) / [2] Supreme Court Decision 2000Da6254 Decided June 28, 2002 (Gong2002Ha, 1779) / [3] Supreme Court Decision 96Da462 Decided June 13, 1997 (Gong197Ha, 2138), Supreme Court Decision 2002Da591238 Decided February 111, 2003; Supreme Court Decision 2002Da5392382 Decided February 23, 2012

Plaintiff

Defendant 1 and one other

Seoul High Court Decision 2008Na6016 decided April 29, 2009

The part of the lower judgment’s conjunctive claim against Defendant 1 is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the appeal against Defendant 1 and the appeal against Defendant 2 are dismissed, respectively. The costs of appeal against Defendant 2 are assessed against the Plaintiff.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Regarding ground of appeal No. 1

A. Article 136(1) of the Civil Procedure Act provides, “The presiding judge may ask the parties questions, in fact, or in law, about the matters in order to clarify the litigation relations, and urge them to testify.” Article 136(4) provides, “The court shall give the parties an opportunity to state their opinions on the legal matters which are obviously deemed to be excessive to the parties.” Thus, in a case where there are matters of law which are clearly excessive due to misunderstanding or the parties’ assertion in terms of legal perspective and inconsistency or uncertainty, the court shall actively exercise the right of explanation and give the parties an opportunity to state their opinions. If the parties neglected to state their opinions, the court shall actively exercise the right of explanation and give them an opportunity to state their opinions. If the parties neglected to state their opinions, it shall be erroneous (see, e.g., Supreme Court Decisions 2005Da37185, Jan. 26, 2006; 207Da29706, Sept. 6, 2007).

On the other hand, if the contents of pleading are entered in the protocol, it shall have a strong probative value as to the fact that the contents are true unless there are other special circumstances. However, if its meaning is not clear, a reasonable interpretation shall be made by taking into account the arguments of the parties in the process of litigation, etc. (see Supreme Court Decision 2000Da62254, Jun. 28, 2002).

B. (1) According to the reasoning of the judgment below, on December 10, 1997, the court below affirmed that the Plaintiff entered into a contract to purchase the instant land from Defendant 1 for KRW 370 million (hereinafter “the instant first sale contract”) based on the evidence of employment, but rendered a judgment dismissing the Plaintiff’s conjunctive claim on the ground that the Plaintiff’s damage claim against Defendant 1 and the remainder payment claim are not recognized.

(2) However, it is difficult to accept such a determination by the lower court for the following reasons.

According to the records, the plaintiff consistently sought the implementation of the procedure for the registration of ownership transfer based on the first sale contract (hereinafter “the second sale contract of this case”) on January 1, 1998, the price of which has been reduced around the original instance consistently, and the above sale contract becomes null and void, the plaintiff seeks the implementation of the procedure for the registration of ownership transfer based on the first sale contract of this case. However, if the above sale contract is null and void, the plaintiff asserted a set-off against the defendant 1's damage claim and the obligation to pay the remainder, and the plaintiff's representative also included the same assertion in the preparatory documents and summary brief as stated on the 10th date of pleading of the original instance. The pleading protocol on the same date of pleading states that “The preliminary claim of this case is an unconditional claim, and does not seek any balance and any simultaneous performance,” and the defendant asserts the non-payment of the remainder under the first sale contract of this case.

In light of the aforementioned legal principles and the above progress of the lawsuit, the phrase “not seeking concurrent performance with the remainder” in the above pleading protocol may be interpreted in entirety to the effect that the obligation to pay the remainder is offset against the damage claim against Defendant 1, and that the obligation to pay the remainder is seeking an unconditional performance regardless of the above damage claim. In interpreting the latter meaning, there is no substantial reason for the Plaintiff to separately claim the main claim and the conjunctive claim, and most of all, it is clearly contradictory to the contents of the summary brief stated on the same date for pleading. Therefore, it is difficult to readily conclude that the Plaintiff’s agent’s statement in the above pleading protocol is seeking an obligatory performance regardless of whether the Plaintiff’s assertion against the damage claim is accepted or not. This is because it is difficult to easily think that the Defendant seeking an unconditional performance even without accepting the aforementioned offset claim against Defendant 1.

C. Therefore, the court below should have deliberated more on the meaning of the statement that "the preliminary claim of this case is seeking an unconditional performance," and should have clarified its meaning by exercising the right of explanation. In addition, the court below dismissed the plaintiff's preliminary claim of this case without taking such measures, which did not properly examine, thereby neglecting the exercise of the right of explanation, thereby adversely affecting the conclusion of the judgment. The plaintiff's assertion pointing this out has merit.

2. As to the grounds of appeal Nos. 2 and 3

A. If the stamp image of the holder of a title deed affixed on a private document is reproduced by his/her seal, barring special circumstances, it shall be presumed that the authenticity of the stamp image is created, i.e., the act of affixing the seal is based on the will of the holder of the title deed, barring special circumstances. Once the authenticity of the stamp image is presumed, it shall be presumed that the entire document is authentic by Article 358 of the Civil Procedure Act, but such presumption shall be broken if it is revealed that the act of affixing the seal was made by a person other than the title deed, or that it was made against the will of the holder of the title deed, or not based on the will of the holder of the title deed. Furthermore, the presumption that the authenticity of the stamp image is based on the will of the holder of the title deed, is de facto presumed. Thus, if the person disputing the authenticity of the stamp image proves circumstances that the act of affixing the seal will be based on the will of the holder of the title deed, the presumption of the authenticity shall be broken (see, e.g., Supreme Court Decision 2003Da131394.).

B. According to the reasoning of the judgment below, the court below determined that the presumption of the authenticity of the second sale contract (Evidence A6) of this case was reversed in light of the following: (a) the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and acknowledged the facts as stated in its reasoning; (b) the correction of the seller and the purchaser indication on the second sale contract of this case was not carried out; (c) it was difficult to see that Defendant 2 had affixed a seal because it overlaps on the same place while replacing the seal owner; and (d) Defendant 2 received a request from Defendant 1 for sale without damages from Defendant 1; and (c) there was no reason to sell at a lower price than KRW 100 million than the purchased price; and (d) the plaintiff claimed that the second sale contract of this case was concluded at a time from January 1, 1998 to the time the lawsuit of this case had not been demanded by Defendant 1 to implement the procedure for the registration of ownership transfer.

C. Examining the records in light of the above legal principles, the above judgment of the court below is acceptable, and there is no error in the misapprehension of legal principles as to the establishment of authenticity of private documents, or in violation of the rules of evidence, etc. Therefore, the plaintiff's assertion as to the plaintiff's expression representative, which is premised on the establishment of the second sales contract of this case as genuine, is without merit

3. Regarding ground of appeal No. 4

According to the reasoning of the judgment below, after Defendant 1 transferred KRW 30 million to Defendant 2 on January 15, 1998 as the sales contract amount for the land of this case, he was aware of the fact that the sales contract for the land of this case was cancelled by Defendant 2 and he was aware of such fact, and Defendant 1 did not transfer the full ownership after repayment of the remainder amount. Thus, it is sufficient that Defendant 1 did not pay the remainder amount. Thus, in the situation where the Plaintiff did not pay the remainder amount, it cannot be deemed that the Plaintiff suffered any loss on the ground that Defendant 1 created the right to collateral security and superficies as above on the real estate of this case. In light of the records, the judgment of the court below is just, and there is no error in the misapprehension of legal principles as to the right to claim damages or in the violation of the rules of evidence, etc. as otherwise alleged in the grounds of appeal.

4. Regarding ground of appeal No. 5

According to the reasoning of the judgment below, the court below acknowledged the facts as stated in its reasoning after compiling the adopted evidence, and rejected the plaintiff's claim for damages on the ground that the plaintiff cannot be seen as a party to the exchange contract, etc. of this case formally or substantially. The above judgment of the court below is just in light of the records, and it is not erroneous in the misapprehension of legal principles as to the confirmation of the parties to the exchange contract, or in the

5. Conclusion

Therefore, among the judgment below, the part of the conjunctive claim against Defendant 1 is reversed, and that part of the case is remanded to the court below for a new trial and determination. All of the remaining appeals against Defendant 1 and appeals against Defendant 2 are dismissed. The costs of appeal against Defendant 2 are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Hong-hoon (Presiding Justice)