[1] The validity of the contract where the contract was concluded by the contract but the legal effect of the contract was not well known

[2] The case holding that even if a party who entered into a contract with only a license for the electrical construction business other than a debt to be transferred through the division and merger believed to acquire only the license without the succession of debt by the contract, it is merely an error in the legal effect of the division and merger

[3] The case holding that the conclusion of a merger after division contract which did not consider the possibility of the other party to the contract's debt to be borne by the former party's electronic debt constitutes a mistake in motive related to the legal effect of the merger after division, but it did not indicate the other party's debt in the process of the conclusion of the contract, and it cannot be readily concluded that such mistake was about

[1] In determining the objective agreement of expression of intent for the formation of a contract, if a contract is a disposal document, barring special circumstances, the existence and content of the expression of intent should be recognized as stated in the contract, and even if the contract was not fully aware of the legal effect of the contract in question, it can only be a matter of mistake of expression of intent for the conclusion of the contract.

[2] The case holding that, in the case of a merger by division and merger, insofar as the contract, which is a disposal document, states the purport of transferring the electrical construction business license, etc. excluding the obligation, by the method of division and merger, the agreement that the existing company prior to the merger by division and merger does not succeed the obligation of the company prior to the merger by violation of Article 530-9 of the Commercial Act, and even if it does not have an effect on the creditor, the contracting party is deemed that there was an agreement between the contracting parties to transfer the electrical construction business license, etc. excluding the obligation as stated in the contract, to the method of division and merger, and even if one party concluded the contract to believe that it was acquired by transfer only the above license, etc. without knowing the possibility of the other party'

[3] The case holding that even if the party who entered into a contract for the division and merger with the contents of a license for electrical construction business license, etc. transferred from another company due to the division and merger did not think of the possibility of the other party's debt to be borne by the former party's debt due to the conclusion of the contract constitutes mistake in motive related to the legal effect of the division and merger, it is not possible to conclude that the contract was not entered in the process of the conclusion of the contract and there is no possibility that the other party may suffer economic disadvantage or suffer disadvantage from the error, and it is not possible to conclude that it is an error

[1] Articles 105 and 109 of the Civil Act / [2] Articles 105 and 109 of the Civil Act, Article 530-9 of the Commercial Act / [3] Article 109 (1) of the Civil Act

[2] Supreme Court Decision 2006Da26380 Delivered on October 12, 2006 / [3] Supreme Court Decision 93Da55487 Delivered on March 26, 1996 (Gong1996Sang, 1363) Supreme Court Decision 98Da47924 Delivered on February 23, 199 (Gong199Sang, 545) Supreme Court Decision 2006Da41457 Delivered on December 7, 2006 (Gong2007Sang, 120)

Plaintiff (Law Firm National, Attorneys Kim Ho-sung et al., Counsel for plaintiff-appellant)

Defendant Co., Ltd. (Law Firm Dakel, Attorneys Choi Ji-dam et al., Counsel for the defendant-appellant)

Seoul High Court Decision 2008Na15225, 15232 Decided November 27, 2008

The part of the lower judgment against the Defendant (Counterclaim Plaintiff) is reversed, and that part of the case is remanded to the Seoul High Court.

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

Without being asserted in the lower court, the new argument that was raised in the final appeal cannot be a legitimate ground of appeal against the lower judgment (see, e.g., Supreme Court Decision 2001Da63575, Jan. 25, 2002). According to the records, the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”) only asserted by the Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) on the premise that the instant contract is a contract aimed at transferring electrical construction business licenses, etc. by means of a merger and merger until the closing of argument in the lower court, and it can be known that the instant contract was not a business transfer contract. Accordingly, this part of the grounds of appeal cannot be a legitimate ground of appeal.

In addition, even if the contract of this case allows the plaintiff to succeed only to the license for electrical construction business except the defendant's debt, and the defendant's shareholder did not provide the procedure for distributing shares from the plaintiff, as long as the contract of this case is not a contract for the purpose of division and merger, but a transfer of business (the individual procedure of transfer of the business property subject to transfer) is not a contract for the purpose of division and merger, so the contract of this case cannot be deemed a transfer of business (the individual procedure of transfer of the business property subject to transfer). Thus, there is no error of law by misunderstanding

2. Regarding ground of appeal No. 2

In determining the objective agreement of expression of intent for the formation of a contract, if there is a contract which is a disposal document, the existence and contents of the expression of intent should be recognized as stated in the contract unless there are special circumstances, and even if not fully aware of the legal effect of the contract in the contract in question, it is a matter of mistake of expression of intent for the conclusion of the contract.

According to the reasoning of the judgment below, the court below determined that the contract of this case was not inconsistent with both parties since it is reasonable to view that the plaintiff was able to acquire only the license except the defendant's debt or property, and that the contract of this case was concluded with the purport that "shall succeed only to all the qualifications, such as the right to registration of construction business (license), performance records, and share of investment in the mutual aid association" in the contract, and that the defendant entered into the contract of this case with the intent that the defendant and the representative director of the defendant would compensate the plaintiff for the joint and several liability in the event of a subsequent problem knowing that the plaintiff would be liable for joint and several liability

However, in light of the above legal principles, we cannot agree with the judgment of the court below for the following reasons.

First, inasmuch as the objective language and text clearly states the purport of transferring the contract of this case, which is a disposal document, a electrical construction business license, etc. other than liabilities, by a divided merger, the agreement that the existing company prior to the division and merger does not succeed to the obligations of the company prior to the division and merger violates Article 530-9 of the Commercial Act, and thus, it is null and void in relation to creditors (see Supreme Court Decision 2006Da26380, Oct. 12, 2006). The party to the contract of this case and the defendant should be deemed that there was an agreement between the parties to the contract of this case and the parties to the contract of this case that transfer the electrical construction business license, etc. other than liabilities, by the divided merger method. Even if the plaintiff concluded the contract of this case without knowing the defendant's risk of bearing the defendant's obligations, it is merely a mistake as to the legal effect of the division and merger.

In addition, even if the plaintiff's acquisition of a license for electrical construction business by the method of division and merger did not know the possibility that he will bear the defendant's obligation, it is reasonable to view that the plaintiff is likely to bear the defendant's obligation in the case of division and merger, in light of the following circumstances, namely, that the plaintiff's company engaged in electrical construction business and entered into a contract for electrical construction business license transfer through the non-party 1, an individual among the professional areas. In particular, if the plaintiff did not think that he would be liable for the defendant's obligation, even though the contract is excluded from the contract, it is again prepared a separate statement about the defendant's obligation in Article 8 of the contract, and accordingly there is no reason to receive a separate statement about the defendant's obligation (Evidence No. 3) from the defendant and the representative director of the defendant, and the non-party 2 and the non-party 3, the managing director of the defendant's company, who is jointly responsible for the defendant's obligation in the case of division and merger.

Nevertheless, the court below determined that the contract was not constituted with the intent of the plaintiff, despite the objective language specified in the contract, and therefore, the court below erred by misapprehending the legal principles on the formation of the contract, which affected the conclusion of the judgment. Therefore, the defendant's ground of appeal pointing this out is with merit.

3. As to the third ground for appeal

In a case where there is an error in the important part of the contents of a juristic act, the declaration of intent may be revoked. In a case where there is an error in the motive for the declaration of intent, it may be revoked by mistake in the contents of the declaration of intent only when the parties have taken the motive into account as the content of the declaration of intent (see Supreme Court Decision 93Da55487, Mar. 26, 1996, etc.). In addition, in order to determine that the error is an important part of the contents of a juristic act, the difference with the indication must be objectively obvious in view of the objective pursued by the person who made the indication, and if it is deemed that the person who made the indication does not suffer from inhuman economic disadvantage, it cannot be deemed as an error in the important part of the contents of the juristic act (see Supreme Court Decision 98Da47924, Feb. 23, 199

According to the reasoning of the judgment below, even if the contract of this case was effective, the court below determined that since the plaintiff concluded the contract of this case with the belief that it is possible for the defendant to succeed only to the qualification requirements for the electrical construction business, etc. and that it is not likely to bear the defendant's obligation, the contract of this case constitutes an error of motive

However, as seen earlier, it is reasonable to deem that the Plaintiff entered into the instant contract with the knowledge that there is no risk that the Plaintiff would be liable for the Defendant’s debt, rather than entering into the instant contract with the awareness that it would be liable for the Defendant’s debt. However, according to the reasoning of the judgment below, the Plaintiff’s electrical construction business license, etc., which the Plaintiff intended to take over through the instant contract, was transferred to the Defendant via Nonparty 1 and Nonparty 2, and the transfer was made by both the company and the merger. Nonparty 1 corporation was suspended from current account transaction around July 4, 2005, which was the creditor of Nonparty 1 corporation, and the KIKO Telecom, a creditor of Nonparty 1 corporation, filed a lawsuit against the Defendant and Nonparty 2 for the payment of promissory notes issued by Nonparty 1 corporation on August 4, 2006, and the Plaintiff notified the Plaintiff of the duplicate of the complaint, which the Plaintiff could have been liable for the debt of Nonparty 1 corporation, and the Plaintiff did not appear to have agreed to pay the remainder of the contract of this case.

However, even if the defendant's failure to think of the possibility of being liable to the debt of the non-party 1 corporation as above constitutes mistake in motive relating to legal effect of merger after division, such motive is not indicated to the defendant during the process of entering into the contract of this case, and it is also known to the above facts recognized by the court below. Furthermore, according to the judgment below and the records, the plaintiff's identification of the plaintiff's transfer of a bill to the non-party 1 corporation to the non-party 50-60 or the non-party 1's transfer of a debt to the non-party 1 corporation to the non-party 50-60 or the non-party 1's transfer of a debt to the non-party 1 corporation to the non-party 1 corporation to the non-party 1's transfer of a debt of the non-party 1 corporation to the non-party 1 corporation was not confirmed, and there is no possibility that the non-party 1 corporation and the non-party 1 corporation at the time of merger between the non-party 2 corporation and the non-party 1 corporation will be at an economic disadvantage.

Therefore, the judgment of the court below which judged that there was an error in the motive expressed in the part of the main contents of a juristic act by the plaintiff, is erroneous in the misapprehension of legal principles as to a mistake in declaration of intent, which affected the conclusion of the judgment.

4. Conclusion

Therefore, the part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the lower court for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Si-hwan (Presiding Justice)