In case where a written reply or a preparatory document delivered to the other party after being submitted to the court is written with the content corresponding to a confession, whether such confession constitutes a judicial confession to be made, which shall be deemed to be a statement or statement at the date for pleading or preparatory

Article 288 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jong-soo et al., Counsel for plaintiff-appellant)

Limited Liability Company Specialized in L&WC-backed Securitization

Thai Construction Co., Ltd.

Changwon District Court Decision 2013Na31971 decided October 16, 2014

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

The grounds of appeal are examined.

1. A confession binding under Article 288 of the Civil Procedure Act is limited to a confession during a trial, and a confession during a trial refers to a confession at the date of pleading or the statement of facts unfavorable to himself, consistent with the allegations of the other party alleged by the parties at the date of pleading (see, e.g., Supreme Court Decision 95Da37988, Dec. 20, 1996). Even in cases where there are descriptions in the answers or briefs submitted to the court and served on the other party, the confession during the trial shall be established as a confession during the date of pleading or during the date of preparatory pleading,

2. The lower court acknowledged, based on the relevant employment evidence, the fact that the registration of the entry in the decision on commencing auction was completed on November 8, 201 with respect to the instant real estate on the date of commencement, and deemed that the Defendant, around November 14, 2011, which was after the entry registration, led to a confession at the date of the first instance trial of the first instance. Furthermore, on the grounds as stated in its reasoning, the lower court determined that the confession was contrary to the truth or difficult to be deemed due to mistake. Furthermore, the lower court accepted the Plaintiff’s claim for confirmation of existence of the lien on the instant one real estate on the ground that the possessor, who commenced possession after the entry of the decision on commencing auction, could not oppose the successful bidder in the auction procedure on the ground that the right of retention was

3. However, we cannot agree with the above determination by the court below.

A. First, according to the record, the Defendant’s written reply submitted on November 13, 2012 states that “the Defendant commenced possession of the instant real estate 1 on or around November 14, 201.” On the other hand, the written reply submitted on June 5, 2013 states that “the possession of the instant real estate 1 was wrong, and the possession was commenced on or around March 30, 201,” and the Defendant stated that “the Defendant made a statement on June 5, 201 with the written reply as of the first date for pleading as of June 7, 2013.”

As can be seen, insofar as the Defendant stated in the Defendant’s reply and the preparatory document dated June 5, 2013 at the same date for pleading, the Defendant’s statement corrected as stated in the above preparatory document is limited to the statement that “the Defendant commenced around March 30, 201,” that is, the Defendant’s possession of the instant real estate on March 30, 201,” not the statement as stated in the written reply, but the statement that the Defendant started possession on November 14, 201, which was the date on which the decision to commence auction was entered. Moreover, it cannot be viewed as different on the ground that the Defendant’s aforementioned written statement submitted by the Plaintiff prior to the submission of the Defendant’s written reply contains the content of invoked the content set forth in the Defendant’s written reply.

Therefore, a confession in court cannot be established as to the fact that the Defendant started possession of the real estate of this case around November 14, 201, which was after the entry of the decision on commencing auction.

B. Furthermore, according to the reasoning of the lower judgment and evidence duly admitted by the lower court, the Defendant sent 10th of March 24, 201 to the Nonparty’s representative director of Dong name Co., Ltd. (hereinafter “Dong name”) who is the owner of the instant real estate on March 24, 201, a document verifying that “the name of Dong name prevents the Defendant from entering the construction site and exercising the right of retention, because it did not pay the construction cost to the Defendant,” and as such, the Defendant did not appear to have been exposed to 10th of March 30, 201 to the effect that the entrance of the instant real estate was installed at the entrance of the instant 1 real estate and the banner indicating the exercise of the right of retention as of March 30, 201. The Defendant did not appear to have been aware of the date 20th of the date 10th of the acquisition and transfer of the photograph as of November 14, 2011, as well as the date 10th of the record.

Therefore, it is reasonable to view that the Defendant, around March 30, 201, occupied the instant real estate for the purpose of exercising the right of retention.

C. Nevertheless, the lower court determined otherwise solely on the grounds stated in its reasoning. In so doing, the lower court erred by misapprehending the legal doctrine on the establishment of a confession in court by violating logical and empirical rules and exceeding the bounds of the principle of free evaluation of evidence, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds

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 Kwon Soon-il (Presiding Justice)