Article 104 of the Civil Act requirements for establishing an unfair juristic act

An unfair legal act stipulated in Article 104 of the Civil Act is established only when there exists an objective imbalance between payment and consideration, and a transaction losing such balance is conducted based on the urgent situation, rashness, or experience of the victimized party, and the purpose is to regulate an act of rashing by taking advantage of the rash or experience. Thus, even if the injured party was in an emergency, rash or in an inexperience, the injured party does not constitute an unfair legal act in the absence of a bad faith, i.e., intent to use such act, knowing the circumstances of the victimized party, even though the injured party was in a state of rash

Article 104 of the Civil Act

[Judgment of the court below]

[Defendant-Appellee] Defendant 1 and 3 others

Daegu High Court Decision 85Na1068 delivered on January 30, 1986

The appeal is dismissed.

The costs of appeal are assessed against the plaintiff.

1. We examine the ground of appeal No. 1 by the Plaintiff’s attorney.

(1) The unfair legal act stipulated in Article 104 of the Civil Act is established only when there exists an objective imbalance between payment and consideration, and a transaction which loses such balance is conducted by taking advantage of the emergency, rashness, or inexperience of the victimized party, and its purpose is to regulate an act of rash by taking advantage of the rash or experience of the injured party. Thus, even if the injured party was in the state of emergency, rash or in experience of the injured party, it does not constitute an unfair legal act in the absence of a bad faith, i.e., intent to use it, knowing the circumstances of the victimized party.

(2) According to the reasoning of the judgment below, when the defendant implements an urban planning project for the creation of a new market area for the land of this case, the court below determined the use as a commercial area by dividing the land of this case into a general housing area, apartment area, route street zone, commercial area, commercial area and commercial area according to the purpose. The commercial area can be used as a large building and a route street and commercial area can only be used as a commercial area. The land of this case purchased by the plaintiff from the defendant was designated as a commercial area where the building of this case can be constructed of a scale of a neighborhood living facilities in an apartment complex within a residential area. However, according to the records, the public officials of the defendant mountain in charge of an open bid for private land including the site of this case did not clearly distinguish the name of the commercial area from that of the commercial area in the open competitive bidding process, but did not use the land of this case by creating a commercial area of neighborhood living facilities in the residential area or commercial area, and it did not have any error in the judgment below finding that the price of this case was invalid by the plaintiff's 10 or 4 commercial area as evidence.

As determined by the court below, if the land of this case is included in the commercial area where a certain size of commercial facilities can be installed even within a residential area, it is difficult to assert that there is a significant imbalance with the commercial area only on the ground that it belongs to the original residential area, and according to the testimony of Non-Party 2, such as Non-Party 1 and Non-Party 2, the witness of the court of first instance, which is used as evidence for the determination of the above facts, the court below did not have any evidence to find that the public official in charge of the sale and purchase of the land of this case is a commercial area and there is no difference between the commercial area and the commercial area, and there is no evidence to find that the public official in charge of the sale and purchase of the land of this case combined two terms and assessed the market price by considering that the public appraiser in charge of the appraisal and assessment of the land of this case is the same concept as the commercial area and the commercial area. Thus, at the time of the sale and purchase of the land of this case, it is difficult to view that the plaintiff was aware of the difference between the commercial area and the commercial area without experience.

2. We examine the grounds of appeal Nos. 2 and 3 as well.

(1) According to the reasoning of the judgment below, the court below rejected the plaintiff's assertion of mistake by finding that the plaintiff did not recognize that the land of this case was included in the commercial area at the time of the sale and purchase of this case. In light of the records, the above judgment below did not err by misapprehending the fact that the preparation of evidence was completed, such as the theory of appeal.

(2) In addition, even if the sale contract of this case was made by the plaintiff's declaration of intention due to the plaintiff's domestic mistake, the plaintiff sold part of the share of this case acquired through the above sale contract after August 27, 1984, which became known that the land of this case was not a commercial area, to the non-party 3, the non-party 4, etc., and then disposed of part of the land of this case by making the registration of the transfer of ownership and the establishment of superficies on the land of this case to the non-party 1 on May 1, 198. The decision of the court below found that the plaintiff could not revoke the sale contract of this case on the ground of the above mistake since it constitutes the legal reasoning for the transfer of ownership and the establishment of limited real right as stipulated in subparagraph 5 of Article 145 of the Civil Act. The decision of the court below was made on March 26, 1984 by requesting the plaintiff to make an appraisal report of this case to the non-party 3, the non-party 4, etc., but it was found to be unlawful.

However, according to the appraisal report in the above Gap evidence No. 6, this appraisal report is prepared by the reverse branch of the Korea Exchange Bank with the appraisal request of the plaintiff's securities value for the plaintiff's obligations at the Korea Exchange Board's U.S. branch. Thus, according to the evidence No. 7-1 and No. 8 without dispute, the plaintiff's request for appraisal to the above Korea Exchange Board's U.S. branch at the time of the appraisal request that the land use becomes a residential area, and the plaintiff's request for correction was made by asking the plaintiff about whether it is erroneous or erroneous. Thus, the measures that the court below acknowledged that the plaintiff knew of the contents of the appraisal after the date of the above appraisal report is prepared is justified and there is no violation of law such as the theory of lawsuit.

In the end, even if the plaintiff's mistake is well-grounded, the part of share in the real estate acquired under the above sales contract was sold to a third party after the plaintiff became aware of such error as determined by the court below, and the registration of share transfer was made, and it is clear in light of the provisions of Article 145 of the Civil Act, that the ratification of the sales contract of this case may not be deemed to have been made, and therefore, the court below's decision that the plaintiff cannot cancel the sales contract of this case on the ground of mistake does not contain any error.

Ultimately, it is not possible to employ the argument that the lower court erred by misapprehending the legal doctrine on statutory prosecution.

3. Therefore, the plaintiff's appeal is dismissed as it is without merit, and the costs of the lawsuit are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Lee Jae-seok (Presiding Justice)