[2] Whether Article 130 and Article 133 of the Civil Code on the ratification of Unauthorized Representation can be inferredly applied to the ratification by an unentitled person (affirmative), and whether the effect of the contract is retroactively attributable to the right holder when the contract is concluded upon ratification by the right holder (affirmative in principle)

[2] If the right holder ratified a disposition taken by an unentitled person, the situation of interest between the parties is similar to the case where the person himself/herself ratified the disposition taken by the unentitled person. As such, Articles 130 and 133 of the Civil Act concerning the ratification of the unauthorized Representation may be inferredly applied to the ratification by the unentitled person. Therefore, in cases where the disposition taken by the unentitled person was taken by the right holder, it shall be deemed that the effect of the contract, in principle, belongs to the right holder

1. Ground of appeal Nos. 1 and 2

A. To transfer the right through a juristic act, there must be an act of disposal by the holder of the right or the person having the authority to dispose of the right. In a case where an unentitled person disposes of the right of another person, the right shall not be transferred, barring any special circumstances. However, in such a case, ratification of the disposition by the unentitled person may be permitted in accordance with the principle of private autonomy that the person having the right may form the legal relationship by himself/herself. Such ratification shall be known to the effect that the disposition by the unentitled person is taken, may be explicitly or implicitly, and such declaration of intent may be free from the point of view of the unentitled person or the other party (see Supreme Court Decisions 63Da880, Jun. 2, 1964; 2001Da4291, Nov. 9, 2001, etc.).

If a right holder ratified a disposition taken by an unentitled person, it is similar to the case where the person himself/herself ratified the disposition on the unauthorized representation and the situation of interest between the parties. As such, Articles 130 and 133 of the Civil Act on the ratification of the unauthorized Representation may be inferredly applied to the ratification by the unentitled person. Therefore, if the disposition taken by the unentitled person was made by a contract, the effect of the contract should be, in principle, retroactively to the right holder when the contract was concluded

B. According to the judgment below, the following facts are revealed.

(1) The Plaintiff is the mother of Nonparty 1, who is the owner of land of Pyeongtaek-si ( Address omitted) 2,882 square meters (hereinafter “instant land”).

(2) Around December 21, 2010, Nonparty 1 entered the Defendant Cooperative and worked for the Defendant Cooperative. Nonparty 2, who entered the Defendant Cooperative around February 20, 1993, entered the Defendant Cooperative and worked as the Defendant’s head of ○○○ Branch around February 14, 2013.

(3) On May 18, 2012, Nonparty 2 and Nonparty 1 conspired to forge and use a loan transaction agreement, a mortgage contract, etc. under the Plaintiff’s name, and subsequently, obtained loans of KRW 230 million from the Defendant on May 18, 2012, following the registration of creation of a neighboring mortgage (hereinafter “the registration of creation of a neighboring mortgage”) consisting of the Plaintiff and the maximum debt amount of KRW 3220 million. Thereafter, the Plaintiff filed a complaint against Nonparty 2 and Nonparty 1 with a private document forgery, fraud, etc., and they were convicted.

(4) On May 21, 2012, after the establishment registration of the first place of the establishment was completed, the Plaintiff, who was the founder, was notified of the completion of the registration in accordance with the relevant laws and regulations.

(5) When interest on KRW 230,000,000 was overdue due to the registration of creation of the first collateral loan, the Defendant notified the Plaintiff, on August 2012, 201, of the pre-announcement of the loss of profits due to the loan obligation. After the delay in payment, the Defendant urged the Plaintiff to pay the interest on the loan, and notified the Plaintiff of the scheduled commencement of the voluntary auction due to the registration of establishment of the first collateral loan on November 16, 2012, and the Plaintiff directly received it on November 19, 2012.

(6) On December 31, 2012, the Plaintiff visited the Defendant’s ○○○ Branch and signed on the relevant documents (a loan transaction agreement and mortgage contract) and paid KRW 13,237,000 out of the loans extended KRW 14 million to the Defendant, with respect to the instant land as the principal of the secured loan amount of KRW 14 million.

C. According to the above facts, the Plaintiff became aware of the fact that Nonparty 2, etc., the unentitled person, obtained a loan by registering the establishment of the first place of the establishment of the mortgage through various notification, including the notice of completion of the registration of the establishment of the first place of the establishment. Accordingly, since the Plaintiff extended KRW 14 million to the Defendant with regard to the instant land, the Plaintiff paid most of the instant land as interest to the first place of the secured loan, it can be deemed that the effect of the establishment of the first place of the establishment and the secured loan belongs to himself/herself as effective. As such, by ratification of the disposition of Nonparty 2, etc., the Plaintiff, who is an unentitled person, should be deemed to belong to the Plaintiff.

D. The lower court: (a) deemed that the Plaintiff expressed his/her intent to vest in the legal effect of the establishment registration of the first place of the establishment of the first place of registration to the Defendant; and (b) accepted the Defendant’s defense regarding “Ratification of Unauthorized Representation”; (c) such determination by the lower court erred by misapprehending the “Ratification of the Measures Taken by Unauthorized Representative”; but (d) it is acceptable to accept the Defendant’s defense of ratification. In so doing, the lower court did not err by misapprehending the legal doctrine on ratification, etc., as otherwise

2. Ground of appeal No. 3

The Plaintiff asserts that the lower court erred by finding facts in reliance on Nonparty 3’s false testimony by the Defendant’s head of ○○○ Branch Office. However, the Plaintiff’s assertion is ultimately erroneous in the selection of evidence and fact-finding, which belong to the lower court’s exclusive right as a fact-finding court, and thus, cannot

3. Ground of appeal No. 4

The plaintiff asserted that, by Nonparty 3’s deception, Nonparty 3 entered into a loan transaction agreement with the establishment registration of the second place of mortgage and the second place of loan transaction, the plaintiff revoked the agreement on the ground of fraud, and that the effect of ratification was retroactively null and void, the court below

In the records, there seems to be no circumstance to deem that the Plaintiff entered into a loan transaction agreement with Nonparty 3 with the establishment registration of the second place of the mortgage and the second place of the loan transaction agreement, the lower court cannot be deemed to have erred by omitting judgment in the lower judgment and thereby affecting the conclusion of the judgment.

4. Ground of appeal No. 5

The plaintiff asserts that the plaintiff suffered losses of KRW 230 million due to the illegal act of forging the private document by the non-party 2, and the defendant who is the employer is responsible for compensating for the damages, that the secured debt of the non-party 1 establishment registration should be extinguished in full, and the establishment registration of the non-party 1 should be cancelled.

However, the court below rejected the plaintiff's assertion that the act of establishing the first collateral security upon ratification by the plaintiff did not constitute a tort, and that the act of establishing the first collateral security by the non-party 2 constitutes a tort.

Even though the effect of the registration of creation of the first place of mortgage and the security loan on the plaintiff himself/herself through ratification of the disposition taken by an unentitled person, it cannot be deemed that the plaintiff renounced the right to claim damages due to an unlawful act against the non-party 2, etc. or the employer's liability against the defendant. In light of the fact that the plaintiff filed a criminal complaint against the non-party 2 and the non-party 1 by forging a private document, it cannot be deemed

However, according to the reasoning of the judgment below and the records, it was used to repay the principal and interest of the instant land and the land owned by Nonparty 1, 230 million won, which was loaned by Nonparty 2 and Nonparty 1, at the time of registering the creation of the first collateral security for the instant land as to the instant land by public offering by Nonparty 2 and Nonparty 1, and thereby, it was known that the existing collateral security was cancelled. Accordingly, the damages incurred by the Plaintiff due to the tort, such as Nonparty 2, etc. cannot be deemed as KRW 230 million corresponding to the loan, and there is no circumstance to deem that the entire collateral obligation of the first collateral security registration was extinguished. The court below did not err in the misapprehension of legal principles as to the occurrence of the liability for damages caused by the tort, but the conclusion rejecting the Plaintiff’s assertion was justifiable, which affected the conclusion of the judgment.

5. Conclusion

The Plaintiff’s appeal is dismissed as it is without merit, and the costs of appeal are assessed against the Plaintiff. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-young (Presiding Justice)