[1] The order of determination of formal evidence and substantial probative value in documentary evidence

[2] The case holding that the court below erred by misapprehending the rules of evidence as to the formal probative power of the lease contract, without examining the authenticity of the lease contract, and finding the fact that the lease contract was concluded by using it as evidence, in case where Gap asserted that the lease contract was not concluded, and that the lease contract was concluded by using it as evidence, since the whole lease contract was signed as a disposition document as to the existence and content of the lease contract, and the seal under Gap's name was affixed to the document as to the whole lease contract; thus, the court below should have judged whether the whole lease contract was forged or the seal was affixed, or whether it was disputed or stolen against the will;

[1] Articles 202 and 357 of the Civil Procedure Act / [2] Articles 202 and 357 of the Civil Procedure Act

[1] Supreme Court Decision 93Da41914 delivered on December 7, 1993 (Gong1994Sang, 343), Supreme Court Decision 96Da50520 delivered on April 11, 1997 (Gong1997Sang, 143), Supreme Court Decision 2001Da29254 Delivered on April 8, 2003 (Gong2003Sang, 1073)

Plaintiff (Law Firm Han-ro, Attorney Seo-gu, Counsel for the plaintiff-appellant)

Defendant

Seoul Western District Court Decision 2010Na5391 decided December 23, 2010

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

The grounds of appeal are examined.

Since documentary evidence is a method of proving the facts requiring proof by using the author's intent expressed in the document as documentary evidence, it should first be revealed that the document was made by the person's will alleged as the author by the person who has produced the document. If such formal evidence is recognized, it cannot be used as evidence, and only after the formal evidence is recognized, the substantial probative value of the author's intent should be determined as to how much it is useful as evidence of facts requiring proof. In particular, considering that a disposal document should be able to recognize the existence and content of the expression of intent in accordance with the contents of the document unless there is any clear and acceptable counter-proof that the content of the statement is denied if the authenticity is recognized, it should be careful in recognizing the authenticity of the disposal document (see, e.g., Supreme Court Decisions 93Da41914, Dec. 7, 1993; 96Da50520, Apr. 11, 197; 2004Da2954, Apr. 28, 2003).

According to the reasoning of the judgment below and the records of this case, the defendant asserted that the lease contract of this case was not concluded with the plaintiff in the court below, and there was a ground for defense that each of the lease contracts of this case submitted by the plaintiff as evidence to support the conclusion of the lease contract of this case was forged by the plaintiff, but the court below held that "the defendant was forged by the plaintiff, but there is no evidence to acknowledge it" as to the defendant's ground for defense of evidence without examining the authenticity of each of the lease contracts of this case. The court below determined that the lease contract of this case was concluded between the plaintiff and the defendant in light of the records of each of the lease contracts of this case, and the seal of each of the lease contracts of this case was affixed to the defendant.

Examining the reasoning of the judgment below in light of the aforementioned legal principles, since each of the instant lease contracts is a disposal document as to the existence and content of the lease contract and a seal affixed to each of the documents under the name of the defendant, the court below should have determined whether to establish the authenticity of each of the instant lease contracts after examining whether the defendant contests that the entire lease contract of this case was forged, or whether the seal affixed or stolen against the will is disputed. Nevertheless, the court below recognized the fact that the lease contract of this case was concluded by using it as evidence without examining at any time the authenticity of each of the instant lease contracts was formed. The court below erred in violation of the rules of evidence regarding the formal evidence evidence of each of the instant lease contracts, and such errors affected the conclusion of the judgment. The grounds of appeal pointing this out are with merit.

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Park Si-hwan (Presiding Justice)