[근저당권설정등기말소][공1982.10.1.(689),804]
Cases where the application of expression agency to a contract for creation of a collateral security made in violation of the regulations on loan transaction by banks is illegal;
If, in violation of the regulations on the management of loan affairs of Defendant Bank, the Plaintiff (A), (B), who is a joint guarantor, interviewed the Plaintiff (A), (B) to confirm his will to provide collateral, or to obtain a direct signature and seal from the Plaintiff (A) and the Nonparty (B) without being affixed a seal possessed by the Plaintiff (B) and the Nonparty (B), the Defendant Bank cannot be deemed to have justifiable grounds to believe that Nonparty (A) was a legitimate agent of Plaintiff (B) and (B) when the Plaintiff (A) and (B) jointly manage the publication as a punishment and receive a loan from Defendant Bank in the past. However, even if Nonparty (B) had the seals of Plaintiff (B) and (B) at the time of the establishment of the said right to collateral security, it is difficult to view that the Defendant Bank had justifiable grounds to believe that Nonparty (B) was a legitimate agent of Plaintiff (B) and (B).
Article 126 of the Civil Act
Supreme Court Decision 76Da1155 Delivered on July 13, 1976
Plaintiff 1 et al., Counsel for the plaintiff 1 and one other
[Defendant-Appellee] Korea Commercial Bank Co., Ltd.
Daegu High Court Decision 80Na769 delivered on December 3, 1981
The judgment below is reversed, and the case is remanded to the Daegu High Court.
We examine the Plaintiffs’ Intervenor’ ground of appeal No. 3.
1. According to the reasoning of the judgment below, the court below held that the non-party's mortgage contract of this case on the real estate owned by the defendants was invalid since the non-party stated that it is necessary for the extension of the payment period of KRW 10 million for small and medium enterprise funds borrowed from the defendant to the plaintiffs under joint and several guarantee by the defendant, and it was concluded using the seal imprint and the seal imprint certificate. However, the plaintiffs were married with the non-party, and the non-party 1 operated the ○ publishing company as the chairperson and the non-party representative. Second, the plaintiffs and the above non-party provided real estate owned by them as security and received loans from the defendant bank for a long period of time in order to raise funds necessary for the management of the above publishing company, the above non-party was a joint and several guarantor and prepared necessary documents on behalf of the plaintiff at all times with the seals of the above non-party, and the above non-party was the representative of the above ○○ publishing company and prepared transactions using the seal of the plaintiffs for three years or more through its account account transactions with the defendant bank.
2. However, prior to the conclusion of the instant mortgage contract, the non-party becomes the principal debtor and the joint guarantor and the person establishing the right to collateral security, and the loan from the defendant bank is clear in the record that the loan of 10 million won for small and medium enterprises was made, and there is no evidence to deem that the instant mortgage was established as a collateral for the management fund of the ○○ publishing company by the evidence of the original trial. According to the facts established by the court below, under the regulations on loan transaction of the defendant bank, the documents related to the loan of this case are directly signed and sealed by the debtor and the person in charge of the management and the person in charge of the loan of the defendant bank in the presence of the person in charge of the loan transaction, and if a third party other than the principal debtor becomes the principal debtor, the person in charge of collateral security shall interview the owner and obtain the signature and seal of the principal directly from the defendant bank, and it is difficult to view that the bank of this case was a joint guarantor of the non-party 1 and the person in charge of the loan of this case 7.
3. Ultimately, the court below erred by misapprehending the legal principles on the representation of expression, which affected the conclusion of the judgment, and thus, it constitutes grounds for reversal of Article 12(2) of the Act on Special Cases Concerning Promotion, etc. of Legal Proceedings. Therefore, the argument on this point is with merit, and the judgment of the court below is reversed and remanded to the Daegu High Court. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Lee Lee Sung-soo (Presiding Justice)