Cancellation of expression of intent due to fraudulent acts of others : Focusing on the review of the Supreme Court Decision 2004da43824 dated May 27, 2005

This study mainly focuses on the Supreme Court's 2004da43824 decision, which judged the possibility of cancellation of a declaration of intent when a defect in the declaration of intent occurs due to the deceptive act of another person. In a case where the defendant intended to guarantee personal identity but actually signed and stamped a joint guarantee agreement, the defendant argued that the signature was due to the deceptive act of a third party, so the declaration of intent could not be recognized or that the declaration of intent should be canceled due to the defect. The court of first instance did not recognize the defendant's declaration of intent to guarantee jointly and severally. However, the court of second instance viewed the defendant's act of signing and stamping as an expression of intent to guarantee jointly and severally, and ruled that the plaintiff did not know or could not have known that the defendant's declaration of intent to guarantee jointly and severally was due to the deceptive act of a third party, and therefore it could not be canceled due to fraud. The Supreme Court ruled that since a fraudulent expression of intent is an expression of intent made in error due to another person’s deceptive act, there is no discrepancy between the intent and the expression, and since the defendant’s expression of intent is an error in expression, only the legal doctrine of cancellation by mistake should be applied to determine whether the right to cancel can be exercised. However, it is difficult to accept the above Supreme Court decision. First, it is unfair to reduce the situation in which the freedom of the expresser’s intention is violated due to another person’s deceptive act to a simple mistake, second, there is little basis for restrictively interpreting the requirements for cancellation of a fraudulent expression of intent, and lastly, there is a need for improvement when considering the intent of the Supreme Court en banc decision in a criminal case with similar facts. In addition, we will examine the appropriateness of the basis for the judgment that accepted the defendant’s argument for cancellation by mistake in the second trial after remand. Through the above review, we would like to emphasize that in cases of expressions of intent made in error by another person, it is necessary to recognize the exercise of the right to cancel due to fraud.