(영문) 대법원 2016.7.29.선고 2016다215585 판결

1. As long as the formation of a disposal document is recognized as authentic, the court should recognize the existence and content of declaration of intent in accordance with the language and text stated in the disposal document unless there is any clear and acceptable counter-proof that denies the contents stated in the disposal document (see, e.g., Supreme Court Decisions 2002Da23482, Jun. 28, 2002; 2004Da60065, May 27, 2005). Furthermore, the party who asserts a legal act bears the burden of proving that the legal act is a false declaration of intention (see, e.g., Supreme Court Decisions 2001Da51626, Nov. 27, 2001; 2005Da39617, Jul. 12, 2007).

2. On November 12, 2008, the lower court acknowledged the fact that the Plaintiff and the Defendant entered into a pre-sale on the real estate listed in the separate sheet (hereinafter referred to as “the instant real estate”) as indicated in the judgment of the lower court (hereinafter referred to as “the instant pre-sale agreement”) and accordingly, found the provisional registration of the Plaintiff’s right to claim transfer of ownership on the instant real estate, and dismissed the Plaintiff’s claim on the grounds of the conclusion of the instant pre-sale agreement based on a false or genuine contract, on the grounds stated in its reasoning.

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

A. The reasoning of the lower judgment and the evidence duly admitted reveal the following.

1) A) On January 2005, H, the Defendant’s living together, agreed to purchase approximately KRW 26,000 (hereinafter “N”) of the land 21 lots of land in Busan-gun, Busan-gun, Busan-gun, and KRW 8.1 billion (hereinafter “N”) owned by the Defendant.

B) Although H intended to purchase the said land in the name of the Defendant, a form of punishment, but was unable to prepare the purchase price, H colored the persons to purchase the N land together with the Defendant and H’s form of punishment, and during that process, H participated in the purchase of the N land together with the Defendant and HJ.

On the other hand, the defendant and H resell sold to W on January 26, 2005, the 284 percent of the U's land among the N, the 4,675 percent of V's land to KRW 2.7 billion. On January 27, 2005, the 176 percent of the N's land among the N's N's land, and the 1,449 percent of V's land and X, Y, Z, AAB, AB, AC, and AD' land in KRW 2.75 billion.

C) On February 5, 2005, the fixed sale contract for N-land was concluded on February 5, 2005. As to N-land, the Defendant and the Defendant,00, and AJ concluded a sale contract for the purchase price of 3 billion won for C, T, and R land (hereinafter referred to as “S”) among N-land, and the remainder of land, V, U, X, X, Y, Z, AAB, AB, AC, and AD land (hereinafter referred to as “V”) concluded a sale contract for 5.1 billion won for the purchase price.

D) On February 28, 2005, the registration of the transfer of co-ownership in the name of the defendant, 0, AJ was completed, and as to the V and U land, the registration of the transfer of co-ownership in the name of the defendant, W, AE was completed, X, Y, Z, AAB, AC, and AD land, respectively.

E) On June 27, 2008, V, and U land, the co-ownership registration of which was completed in the name of the Defendant, W, and AE, was divided into V, M (hereinafter “M before the division”), M and U, L, andN land. Of which, as to M and L land before the division, the registration of ownership transfer in the name of the Defendant was completed on the grounds of co-owned property partition.

F) After the subdivision, a part of the shares of the M before the subdivision were transferred to AE on April 6, 2009 due to the exchange. The land before subdivision was divided into M and AO land on November 12, 2009; among M land, the registration of ownership transfer in the name of the defendant was completed due to the partition of co-owned property; as for M land, M land divided has been dealt with with L, together with L land divided.

2) On July 10, 2006, the Defendant: (a) on July 10, 2006, to AL, the wife of K, 1/3 of each of the real estate, 131 of U.S.; (b) 4,422 of U.S. land, 591 of U.S. land, and 4,546 of the V before subdivision, is the real estate of AL, the purchase price of which was paid in full, and purchased in full, AL; (c) however, the Defendant and D (the wife of the Defendant) made a title trust under the name of the principal in accordance with the circumstances of AL. 2. The Defendant and D (the wife of the Defendant) promised to transfer the ownership registration in the name of AL immediately upon request of AL, and they did not claim any right to the said real estate.” (hereinafter referred to as “each of the

3) On November 17, 2006, the Defendant was detained on the charge of violation of the National Land Planning and Utilization Act due to transactions without permission for land transaction and violation of the Act on the Aggravated Punishment, etc. of Specific Crimes due to the evasion of capital gains tax (tax) in connection with the sale and purchase of N land by Busan District Court Branch Branch of Busan District Court Decision 2006Ra181.

On June 15, 2007, the defendant was convicted of violation of the National Land Planning and Utilization Act and was sentenced not guilty of violation of the Act on the Aggravated Punishment, etc. of Specific Crimes (tax). The defendant was sentenced not to the appellate court's dismissal in the Busan High Court Decision 2007Do440, 2007No598 (Joint).

The prosecutor filed an appeal with the Supreme Court Decision No. 2007Do9143 as to the acquittal portion of the appellate court judgment, and the Supreme Court reversed the acquittal portion of the appellate court judgment on February 23, 2012 and remanded it to Busan High Court. After the reversal and return, the lower court found the Defendant guilty of violating the Act on the Aggravated Punishment, etc. of Specific Crimes (tax) on June 28, 2012, sentenced the Defendant to one year and six months of imprisonment and two years of suspended execution, and suspended the sentence of fine.

4) On August 16, 2006, K has established and controlled the Plaintiff under the trade name “C”, which was a stock company. On July 4, 2008, K concluded a mortgage contract with NFFC on the land and L land before division with the debtor as the Plaintiff.

On the other hand, the national bank, the creditor of the defendant, filed an application for provisional seizure of the real estate in the name of the defendant against the defendant on the basis of the claim against the defendant. Accordingly, on July 14, 2008, the entry of the provisional seizure decision was completed with respect to the shares in the name of the defendant among M M land and L land and S land before subdivision, and upon the application for commencement of compulsory auction by the national bank, the entry registration of the decision of compulsory commencement was completed on October 24, 2008. The plaintiff and the defendant entered into the contract of sale of this case with respect to M land and L land before subdivision of November 12, 2008 and entered into the contract of sale of this case on November 12, 2008, "sale price is 1.7 billion won, and the date of completion of the contract of sale is 1.7 billion won, but it is naturally concluded without the declaration of intention of completion of the sale, and a sales contract including "payment of 150 million won on the date of reservation" was prepared.

From December 12, 2008 to December 26, 2008, the Plaintiff subrogated 878,206,530 won in total for the Defendant’s national bank’s obligations as a loan granted by NFF to the Defendant’s national bank. Accordingly, the Plaintiff paid a loan to the Defendant.

The above provisional attachment and the application for commencement of compulsory auction were withdrawn.

5) On May 2009, H knew of the fact of the instant promise to sell and purchase the instant land, H argued K to have a share in M and L land before division.

On May 7, 2009, the Plaintiff and H shall vest in H with a screen golf practice site, which was prepared for opening a business with the Plaintiff’s funds at the time, and “H shall not assert the right to land and L land before division,” and H written a confirmation note (Evidence A9) to the effect that H shall confirm it. He disposed of while operating a screen golf practice range, and then disposed of the screen golf practice range, and then reverted the disposal price of KRW 50 million to H himself according to the said agreement with the Plaintiff.

B. Examining the above facts in light of the legal principles as seen earlier, the following is determined.

1) Barring special circumstances, the instant reservation is a juristic act made on the basis of a written promise for sale, which is a disposal document, and the existence and content of the expression of intent ought to be recognized in accordance with its language and text

2) As to this, the Defendant asserted that the instant trade reservation was made in collusion with the Plaintiff in order to evade compulsory execution by a fine to be sentenced to the Defendant, but considering the following circumstances, it is difficult to readily conclude that the instant trade reservation constitutes a false declaration of conspiracy with the intent to evade compulsory execution.

A) After the lapse of one year from the date of purchase of N land, the Defendant committed a title trust relationship with the Defendant as to the real estate registered in the name of the Defendant among the N land, which was the owner of the real estate registered in the name of the Defendant, and the Defendant is recognized as the title trustee, and the Defendant bears the obligation to transfer ownership to AL and did not assert the right to the said real estate. Thus, at least, the title trust relationship with the Defendant was established regarding the real estate registered in the name of the Defendant among the N in the relationship with AL. However, even if the validity of the title trust agreement is separate from the issue of the validity of the title trust agreement, it is difficult to propose that the Defendant, as the instant letter of each of the instant cases, made a promise to sell and purchase the instant real estate with the Plaintiff and the said real estate operated by K solely for the Defendant’s evasion

B) The Plaintiff obtained a loan from NFF and subrogated for the Defendant’s obligation to pay a loan to a national bank. If the instant promise to sell and purchase was merely a false declaration of conspiracy, there is no reason for the Plaintiff to pay the Defendant’s obligation to pay the interest on the loan that the Plaintiff borrowed under its own name until it bears the interest on

C) The Plaintiff received a letter of confirmation on the waiver of the right to the pertinent real estate from H with the consideration corresponding to the screen-f practice site prior to the partition. If the instant sales promise is merely a false declaration of conspiracy, H did not have any reason to assert the Plaintiff’s share in the land and L land before the partition on the ground of the instant sales promise, and the Plaintiff also did not have any reason to promise H to the purchase price for M and L land before the partition. Nevertheless, the lower court determined that the instant sales promise was not constituted a false or genuine contract solely for the reasons indicated in its holding. In so doing, the lower court erred by misapprehending the legal doctrine on the probative value of the disposal document, the burden of proof of false declaration of a conspiracy, etc., which affected the conclusion of the judgment by failing to exhaust all necessary deliberations. The allegation in the grounds of appeal assigning this error is with merit.

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.