{"id":413,"date":"2009-02-04T08:34:23","date_gmt":"2009-02-03T23:34:23","guid":{"rendered":"http:\/\/lawlec.korea.ac.kr\/?p=413"},"modified":"2026-04-02T02:18:12","modified_gmt":"2026-04-02T02:18:12","slug":"mistake","status":"publish","type":"post","link":"https:\/\/lawlec.korea.ac.kr\/?p=413","title":{"rendered":"Mistake"},"content":{"rendered":"\n

1. 'Material elements' of a contract<\/h4>\n\n\n\n

If there was a mistake as to \u2018material elements\u2019 of a contract, the party who made the mistake may rescind the contract. However, if the other party proves that the mistake was due to gross negligence of the mistaken party, rescission is not allowed. Art. 109(1). Korean law does not distinguish between mutual mistake and unilateral mistake.<\/p>\n\n\n\n

Whether the mistake goes to the \u2018material\u2019 elements of a contract will be assessed using an \u2018objective\u2019 test. The mistake must be serious enough so that a reasonable person would not have agreed to the present terms had he not been mistaken. It is not enough that the particular party in question would not have entered into the contract under the same terms had he not been mistaken.<\/p>\n\n\n\n

\n

2005Da6228<\/p>\n\n\n\n

Credit Guarantee Fund provided a guarantee for a company believing that its owner was A, who had a clean credit record. In fact, the company was owned by B, who had a poor credit rating. Upon default of the company, its creditor demanded payment from the Credit Guarantee Fund. The Fund may rescind the guarantee because the credit-worthiness of the debtor company is a critically important prerequisite for the guarantee. It is a material element of the guarantee contract.<\/p>\n\n\n\n

2001Da36450<\/p>\n\n\n\n

\uacf5\uc0ac\ub3c4\uae09\uacc4\uc57d\uacfc \uad00\ub828\ud558\uc5ec \uccb4\uacb0\ub418\ub294 \uc774\ud589(\uacc4\uc57d)\ubcf4\uc99d\ubcf4\ud5d8\uacc4\uc57d\uc774\ub098 \uc9c0\uae09\uacc4\uc57d\ubcf4\uc99d\ubcf4\ud5d8\uc5d0 \uc788\uc5b4 \uadf8 \ubcf4\ud5d8\uc0ac\uace0\uc5d0 \ud574\ub2f9\ud558\ub294 \uc218\uae09\uc778\uc758 \ucc44\ubb34\ubd88\uc774\ud589\uc774 \uc788\ub294\uc9c0 \uc5ec\ubd80\ub294 \uadf8 \ubcf4\ud5d8\uacc4\uc57d\uc758 \ub300\uc0c1\uc73c\ub85c \uc57d\uc815\ub41c \ub3c4\uae09\uacf5\uc0ac\uc758 \uacf5\uc0ac\uae08\uc561, \uacf5\uc0ac\ub0b4\uc6a9 \ubc0f \uacf5\uc0ac\uae30\uac04\uacfc \uc9c0\uae09\ub41c \uc120\uae09\uae08 \ub4f1\uc744 \uae30\uc900\uc73c\ub85c \ud310\uc815\ud558\uc5ec\uc57c \ud558\ubbc0\ub85c, \uc774\ub7ec\ud55c \ubcf4\uc99d\ubcf4\ud5d8\uacc4\uc57d\uc5d0 \uc788\uc5b4 \uacf5\uc0ac\uacc4\uc57d \uccb4\uacb0\uc77c\uc774\ub098 \uc2e4\uc81c \ucc29\uacf5\uc77c, \uacf5\uc0ac\uae30\uac04\ub3c4 \uacf5\uc0ac\ub300\uae08 \ub4f1\uacfc \ud568\uaed8 \uadf8 \uacc4\uc57d\uc0c1 \uc911\uc694\ud55c \uc0ac\ud56d\uc73c\ub85c\uc11c \uc218\uae09\uc778\uce21\uc5d0\uc11c \uc774\ub97c \ud5c8\uc704\ub85c \uace0\uc9c0\ud568\uc73c\ub85c \ub9d0\ubbf8\uc554\uc544 \ubcf4\ud5d8\uc790\uac00 \uadf8 \uc2e4\uc81c \uacf5\uc0ac\uc758 \uc9c4\ud589\uc0c1\ud669\uc744 \uc54c\uc9c0 \ubabb\ud55c \ucc44 \ubcf4\uc99d\ubcf4\ud5d8\uacc4\uc57d\uc744 \uccb4\uacb0\ud55c \uacbd\uc6b0\uc5d0\ub294 \uc774\ub294 \ubc95\ub960\ud589\uc704\uc758 \uc911\uc694\ud55c \ubd80\ubd84\uc5d0 \uad00\ud55c \ucc29\uc624\ub85c \uc778\ud55c \uac83\uc73c\ub85c\uc11c \ubbfc\ubc95\uc758 \uc77c\ubc18\uc6d0\uce59\uc5d0 \ub530\ub77c \ubcf4\ud5d8\uc790\uac00 \uadf8 \ubcf4\ud5d8\uacc4\uc57d\uc744 \ucde8\uc18c\ud560 \uc218 \uc788\ub2e4.<\/p>\n\n\n\n

2006Da41457<\/p>\n\n\n\n

\ucc29\uc624\uac00 \ubc95\ub960\ud589\uc704 \ub0b4\uc6a9\uc758 \uc911\uc694 \ubd80\ubd84\uc5d0 \uc788\ub2e4\uace0 \ud558\uae30 \uc704\ud558\uc5ec\ub294 \ud45c\uc758\uc790\uc5d0 \uc758\ud558\uc5ec \ucd94\uad6c\ub41c \ubaa9\uc801\uc744 \uace0\ub824\ud558\uc5ec \ud569\ub9ac\uc801\uc73c\ub85c \ud310\ub2e8\ud558\uc5ec \ubcfc \ub54c \ud45c\uc2dc\uc640 \uc758\uc0ac\uc758 \ubd88\uc77c\uce58\uac00 \uac1d\uad00\uc801\uc73c\ub85c \ud604\uc800\ud558\uc5ec\uc57c \ud558\uace0, \ub9cc\uc77c \uadf8 \ucc29\uc624\ub85c \uc778\ud558\uc5ec \ud45c\uc758\uc790\uac00 \ubb34\uc2a8 \uacbd\uc81c\uc801\uc778 \ubd88\uc774\uc775\uc744 \uc785\uc740 \uac83\uc774 \uc544\ub2c8\ub77c\uba74 \uc774\ub97c \ubc95\ub960\ud589\uc704 \ub0b4\uc6a9\uc758 \uc911\uc694 \ubd80\ubd84\uc758 \ucc29\uc624\ub77c\uace0 \ud560 \uc218 \uc5c6\ub2e4.<\/p>\n\n\n\n

96Da26657<\/p>\n\n\n\n

\uace0\ub824\uccad\uc790\ub85c \uc54c\uace0 \ub9e4\uc218\ud55c \ub3c4\uc790\uae30\uac00 \uc9c4\ud488\uc774 \uc544\ub2cc \uac83\uc73c\ub85c \ubc1d\ud600\uc9c4 \uacbd\uc6b0, \ub9e4\uc218\uc778\uc774 \ub3c4\uc790\uae30\ub97c \ub9e4\uc218\ud558\uba74\uc11c \uc790\uc2e0\uc758 \uace8\ub3d9\ud488 \uc2dd\ubcc4 \ub2a5\ub825\uacfc \ub9e4\ub9e4\ub97c \uc18c\uac1c\ud55c \uc790\ub97c \uacfc\uc2e0\ud55c \ub098\uba38\uc9c0 \uace0\ub824\uccad\uc790 \uc9c4\ud488\uc774\ub77c\uace0 \ubbff\uace0 \uc18c\uc7a5\uc790\ub97c \ub9cc\ub098 \uadf8 \ucd9c\ucc98\ub97c \ubb3c\uc5b4 \ubcf4\uc9c0 \uc544\ub2c8\ud558\uace0 \uc804\ubb38\uc801 \uac10\uc815\uc778\uc758 \uac10\uc815\uc744 \uac70\uce58\uc9c0 \uc544\ub2c8\ud55c \ucc44 \uadf8 \ub3c4\uc790\uae30\ub97c \uace0\uac00\ub85c \ub9e4\uc218\ud558\uace0 \ub9cc\uc77c \uace0\ub824\uccad\uc790\uac00 \uc544\ub2d0 \uacbd\uc6b0\ub97c \ub300\ube44\ud558\uc5ec \ud544\uc694\ud55c \uc870\uce58\ub97c \uac15\uad6c\ud558\uc9c0 \uc544\ub2c8\ud55c \uc798\ubabb\uc774 \uc788\ub2e4\uace0 \ud558\ub354\ub77c\ub3c4, \uadf8\uc640 \uac19\uc740 \uc0ac\uc815\ub9cc\uc73c\ub85c\ub294 \ub9e4\uc218\uc778\uc774 \ub9e4\ub9e4\uacc4\uc57d \uccb4\uacb0\uc2dc \uc694\uad6c\ub418\ub294 \ud1b5\uc0c1\uc758 \uc8fc\uc758\uc758\ubb34\ub97c \ud604\uc800\ud558\uac8c \uacb0\uc5ec\ud558\uc600\ub2e4\uace0 \ubcf4\uae30\ub294 \uc5b4\ub835\ub2e4<\/p>\n<\/blockquote>\n\n\n\n

2. Mistake as to 'motivating circumstances' of a contract<\/h4>\n\n\n\n

Funding arrangements, assessment of financial and business risk of the contract, prospect for profitability of the contract do not normally form part of 'elements' of a contract. They may have 'motivated' the parties to enter into the agreement; they may have been important 'reasons' for concluding the contract. But they do not form part of the contract itself.<\/p>\n\n\n\n

Mistake as to motivating circumstances would not, in principle, provide a ground to rescind the contract. However, the court has allowed rescission on the ground of a mistake as to motivating circumstances if the motives were communicated to the other party in such a manner as to incorporate them into the contract. While an agreement to incorporate them into the contract is not necessary, the communicated motives must be material enough so that a reasonable person would not have entered into the contract under the same terms if there was no mistake as to those motivating circumstances. The court does not always seem to maintain a sharp distinction between a mistake of present facts and inaccurate expectation of some future events.<\/p>\n\n\n\n

\n

2000Da12259<\/p>\n\n\n\n

The purchaser was informed that about 4% of the plot of land in question would be subjected to eminent domain. Relying on this information, he decided to purchase the plot as he thought the remaining plot would be sufficient to build a dwelling house on it. He was allowed to rescind the contract when 30% of the land subsequently became subject to compulsory sale in order to make a public road. The court held that the motives for purchasing the land were communicated to the seller during the negotiation and that the motives were material enough so that a reasonable purchaser would not have entered into the contract under the same terms had he not been mistaken.<\/p>\n<\/blockquote>\n\n\n\n

\n

2002Na7701 Future prediction went wrong. No mistake.\ucc29\uc624\uac00 \uc788\ub2e4\uace0 \ud558\ub824\uba74 \ubc95\ub960\ud589\uc704\ub97c \ud560 \ub2f9\uc2dc\uc5d0 \uc2e4\uc81c\ub85c \uc5c6\ub294 \uc0ac\uc2e4\uc744 \uc788\ub294 \uc0ac\uc2e4\ub85c \uc798\ubabb \uae68\ub2eb\uac70\ub098 \uc544\ub2c8\uba74 \uc2e4\uc81c\ub85c \uc788\ub294 \uc0ac\uc2e4\uc744 \uc5c6\ub294 \uac83\uc73c\ub85c \uc798\ubabb \uc0dd\uac01\ud558\ub4ef\uc774 \ud45c\uc758\uc790\uc758 \uc778\uc2dd\uacfc \uadf8 \ub300\uc870\uc0ac\uc2e4\uc774 \uc5b4\uae0b\ub098\ub294 \uacbd\uc6b0\ub77c\uc57c \ud560 \uac83\uc774\ubbc0\ub85c, \ud45c\uc758\uc790\uac00 \ud589\uc704\ub97c \ud560 \ub2f9\uc2dc\uc5d0 \uc7a5\ub798\uc5d0 \uc788\uc744 \uc5b4\ub5a4 \uc0ac\ud56d\uc758 \ubc1c\uc0dd\uc774 \ubbf8\ud544\uc801\uc784\uc744 \uc54c\uc544 \uadf8 \ubc1c\uc0dd\uc744 \uc608\uae30\ud55c \ub370 \uc9c0\ub098\uc9c0 \uc54a\ub294 \uacbd\uc6b0\ub294 \ud45c\uc758\uc790\uc758 \uc2ec\ub9ac\uc0c1\ud0dc\uc5d0 \uc778\uc2dd\uacfc \ub300\uc870\uc5d0 \ubd88\uc77c\uce58\uac00 \uc788\ub2e4\uace0 \ud560 \uc218 \uc5c6\uc5b4 \ucc29\uc624\ub85c \ub2e4\ub8f0 \uc218\ub294 \uc5c6\ub2e4 (affirmed 2003Da38221)   (Similar position is expounded in Amalgamated Investment & Property Co. Ltd v. Walker & Sons Ltd.<\/em> [1977] 1 W.L.R. 164.)<\/p>\n<\/blockquote>\n\n\n\n

2006Da15755 distinguishes mistake of the then existing facts from a future prediction gone wrong (\ub9e4\ub9e4\uacc4\uc57d \ub2f9\uc2dc \uc7a5\ucc28 \ub3c4\uc2dc\uacc4\ud68d\uc774 \ubcc0\uacbd\ub418\uc5b4 \uacf5\ub3d9\uc8fc\ud0dd, \ud638\ud154 \ub4f1\uc758 \uc2e0\ucd95\uc5d0 \ub300\ud55c \uc778\u318d\ud5c8\uac00\ub97c \ubc1b\uc744 \uc218 \uc788\uc744 \uac83\uc774\ub77c\uace0 \uc0dd\uac01\ud558\uc600\uc73c\ub098 \uadf8 \ud6c4 \uc0dd\uac01\ub300\ub85c \ub418\uc9c0 \uc54a\uc740 \uacbd\uc6b0, \uc774\ub294 \ubc95\ub960\ud589\uc704 \ub2f9\uc2dc\ub97c \uae30\uc900\uc73c\ub85c \uc7a5\ub798\uc758 \ubbf8\ud544\uc801 \uc0ac\uc2e4\uc758 \ubc1c\uc0dd\uc5d0 \ub300\ud55c \uae30\ub300\ub098 \uc608\uc0c1\uc774 \ube57\ub098\uac04 \uac83\uc5d0 \ubd88\uacfc\ud560 \ubfd0 \ucc29\uc624\ub77c\uace0 \ud560 \uc218\ub294 \uc5c6\ub2e4)<\/p>\n\n\n\n

However, the court does not always seem to place much weight on the distinction between mistake of law and mistake of fact.<\/p>\n\n\n\n

\n

91DA11308<\/p>\n\n\n\n

The claimant had purchased a building with a misunderstanding that the relevant council regulations would allow the owner of the building to purchase the ground from the city council (in Korean law of property, a building is a separate property from the land on which it stands). The claimant could rescind the building purchase agreement when it turned out that he could not purchase the land. The court found that the reasons for purchasing the building were communicated to the seller of the building at the time of the agreement. Although they were not written down, the motives were material enough to allow rescission.<\/p>\n\n\n\n

93DA24810<\/p>\n\n\n\n

The claimant had sold a building at a price which purported to include the amount of capital gains tax payable by the seller. The estimate for the capital gains tax was worked out by the purchaser and the seller was informed of this calculation. When the Tax Authority finally levied the capital gains tax, it turned out to be much higher than the parties\u2019 estimate. The seller was allowed to rescind the sale contract.<\/p>\n<\/blockquote>\n\n\n\n

If the mistake was provoked by the other party, the court tend to allow rescission upon a more lenient standard. (For a comparable approach in the common law, see Scriven Bros. v. Hindley & Co.<\/em> [1913] 3 K.B. 564.)<\/p>\n\n\n\n

\n

Seoul District Court (Appellate Division) 99Na77808<\/p>\n\n\n\n

\uc774 \uc0ac\uac74 \ub9e4\ub9e4\uacc4\uc57d \uccb4\uacb0 \ub2f9\uc2dc \uc218\ubd84\uc591\uc790\uc778 \uc6d0\uace0\ub85c\uc11c\ub294 \uc704\uc640 \uac19\uc740 \ud53c\uace0\uce21\uc73c\ub85c\ubd80\ud130\uc758 \uc911\ub3c4\uae08\ub300\ucd9c\uc774\ub77c\ub294 \ub3d9\uae30\uc758 \uc81c\uacf5\uc774 \uc5c6\uc5c8\ub354\ub77c\uba74 \ub2e8\uae30\uac04 \ub0b4\uc5d0 \uac70\uc561\uc758 \uc911\ub3c4\uae08\uc744 \uc870\ub2ec\ud55c \uc790\ub825\uc774 \uc5c6\uc5b4 \uc774 \uc0ac\uac74 \ub9e4\ub9e4\uacc4\uc57d\uc758 \uccb4\uacb0\uc5d0 \ub098\uc544\uac00\uc9c0 \uc544\ub2c8\ud558\uc600\uc744 \uac83\uc774\ub098 \ud53c\uace0\ub4e4\uc5d0 \uc758\ud558\uc5ec \uc720\ubc1c\ub41c \uc704\uc640 \uac19\uc740 \ub3d9\uae30\uc758 \ucc29\uc624\ub85c \uc778\ud558\uc5ec \uc774 \uc0ac\uac74 \ub9e4\ub9e4\uacc4\uc57d\uc744 \uccb4\uacb0\ud558\uc600\ub2e4\uace0 \ud560 \uac83\uc774\ubbc0\ub85c \uadf8 \ub3d9\uae30\ub294 \ubc95\ub960\ud589\uc704\uc758 \uc911\uc694\ubd80\ubd84\uc5d0 \ud574\ub2f9\ud55c\ub2e4<\/p>\n\n\n\n

Supreme Court 97Da26210<\/p>\n\n\n\n

\uac74\ubb3c\uc5d0 \ub300\ud55c \ub9e4\ub9e4\uacc4\uc57d \uccb4\uacb0 \uc9c1\ud6c4 \uac74\ubb3c\uc774 \uac74\ucd95\uc120\uc744 \uce68\ubc94\ud558\uc5ec \uac74\ucd95\ub41c \uc0ac\uc2e4\uc744 \uc54c\uc558\uc73c\ub098 \ub9e4\ub3c4\uc778\uc774 \ubc95\ub960\uc804\ubb38\uac00\uc758 \uc790\ubb38\uc5d0 \uc758\ud558\uba74 \uc900\uacf5\uac80\uc0ac\uac00 \ub09c \uac74\ubb3c\uc774\ubbc0\ub85c \ud589\uc815\uc18c\uc1a1\uc744 \ud1b5\ud574 \uad6c\uccad\uc7a5\uc758 \ucca0\uac70 \uc9c0\uc2dc\ub97c \ucde8\uc18c\ud560 \uc218 \uc788\ub2e4\uace0 \ud558\uc5ec \ub9e4\uc218\uc778\uc774 \uadf8 \ub9d0\uc744 \ubbff\uace0 \ub9e4\ub9e4\uacc4\uc57d\uc744 \ud574\uc81c\ud558\uc9c0 \uc54a\uace0 \ub300\uae08\uc9c0\uae09\uc758\ubb34\ub97c \uc774\ud589\ud55c \uacbd\uc6b0 ... [At the time of the contract, the purchaser did not realise that a portion of the building was situated beyond the boundary. He was mistaken. He discovered the true circumstances afterwards. But he paid the price knowing<\/span> the fact. In such a case, the payment would normally be regarded as ratification. In the present case, however, the payment (which would otherwise have been treated as ratification) was actually made under the mistaken belief (provoked by the other party) that the offending portion of the building would not have to be torn down. The payment therefore shall not be treated as ratification.<\/p>\n<\/blockquote>\n\n\n\n

Where mistake was provoked by the counterpart, the 'materiality' is recognised easily.<\/p>\n\n\n\n

Supreme Court case 69Nu83: the official who made the decision to sell a plot of land held a false belief that the land in question has not yet been sold. But the mistake was provoked by the purchaser who applied to purchase the land. The Supreme Court ruled that although the official\u2019s mistake was not about the sale of the land itself, but about the decision-making process or the motivating circumstances of the sale, \u201csince the mistake was wrongfully provoked by [the purchaser], the latter\u2019s purchase does not deserve legal protection and the [seller] is entitled to rescind the contract.\u201d<\/p>\n\n\n\n

3. Gross Negligence<\/h4>\n\n\n\n

Rescission is not allowed if it is shown that the mistake was due to gross negligence of the mistaken party.<\/p>\n\n\n\n