[청구이의·약속어음금][공2001.4.15.(128),740]
[1] In a case where a proxy acts as a bill beyond the scope of authorization, whether the principal bears the obligation under the bill within the scope of authorization (affirmative)
[2] Whether a notarial deed is in force prepared by commission of an unauthorized representative (negative)
[1] Where a person who has been authorized to act as an agent or an agent for a bill performs a bill beyond the authorized scope, the person himself/herself shall be liable for the bill with the proxy or agent within the authorized scope of the bill.
[3] The indication of recognition of execution that a notarial deed allows a person to have executory power as a title of debt is an act of litigation against a notary public, so in case where a notarial deed is prepared by a commission of an unauthorized representative, it is not effective as a title of debt.
[1] Articles 114 and 130 of the Civil Act, Article 8 of the Bills of Exchange and Promissory Notes Act / [2] Article 130 of the Civil Act, Articles 81 and 519 of the Civil Procedure Act
[2] Supreme Court Decision 82Meu1758 decided Jun. 26, 1984 (No. 32-3, 112)
J. Scarsia
Suwon Automobile Sales Co., Ltd. (Law Firm Shin & Kim, Attorney Hun-tae, Counsel for the defendant-appellant)
Seoul High Court Decision 99Na42478, 42485 delivered on July 13, 2000
The part of the lower judgment against the Defendant (Counterclaim Plaintiff) regarding the amount of KRW 10,000,000 and damages for delay on its counterclaim is reversed, and that part of the case is remanded to the Seoul High Court. The remainder of the Defendant (Counterclaim Plaintiff)’s appeal is dismissed. The costs of appeal on the part of the lower judgment are assessed against the Defendant (Counterclaim Plaintiff).
The grounds of appeal are examined.
1. According to the reasoning of the judgment below, the court below acknowledged that the non-party 1 and the non-party 2 demanded that the non-party 1 and the non-party 2, who are children of the plaintiff (the counter-party 2; hereinafter referred to as "the plaintiff"), be placed on a joint surety within the limit of 10,000,000 won from the defendant (the non-party 1; hereinafter referred to as "the defendant"), and that the defendant's liability for damages against the defendant is jointly and severally guaranteed by going beyond the scope of delegation because the plaintiff's certificate of seal impression and the degree of seal impression are delivered to the issuer column of the promissorysory note in this case. The defendant stated the plaintiff's name and address in supplement, stated face value in supplement amount of 60,00,000 won, added a notarized bill to the Dong-dong Office of Law, and made a notarial deed without any objection against the execution of the above promissory note in this case, and dismissed the plaintiff's claim for the payment of the non-party 1 and the non-party 2.
2. However, in case where a person who was authorized to act as an agent or an agent for a bill performs a bill beyond the authorized scope, he shall be liable for the bill with the agent or agent within the authorized scope, and even according to facts acknowledged by the court below, the non-party 1 and the non-party 2 are authorized to execute a joint and several liability contract on behalf of the plaintiff within the limit of 10,000,000 won. Thus, the non-party 1 and the non-party 2 were authorized to execute a joint and several liability contract on behalf of the plaintiff. Thus, the non-party 1 and the non-party 2 are jointly and severally liable for the damages amounting to 60,000,000 won against the defendant beyond the authorized scope of the right. Thus, the part beyond the authorized scope does not affect the plaintiff's act of bill, but the plaintiff shall bear the obligation under the bill.
Nevertheless, the court below erred in the misapprehension of legal principles as to monthly bill representation or signing and sealing agent, which decided that the issuance of the Promissory Notes by Nonparty 1 and 2 on behalf of the plaintiff was wholly null and void, and rejected all of the defendant's counterclaims claiming the payment of the Promissory Notes in this case against the plaintiff. The part concerning the counterclaims in the grounds of appeal is with merit.
3. However, since the indication of recognition of execution that a notarial deed allows a notarial deed to have executory power as a title of debt is the litigation against a notary public, it shall be null and void as a title of debt in the event a notarial deed is made out by a commission of an unauthorized representative. According to the facts duly admitted by the court below, it is clear that the non-party 1 and the non-party 2 were not granted a power of attorney regarding the act of indicating an executory power from the plaintiff. Thus, even if the plaintiff bears a debt within the limit of KRW 10,00,000 among the promissory deed of this case, it shall not be deemed that the notarial deed of this case has an executory power as a title of debt against the plaintiff within the extent of its scope. Therefore, the court below's finding of the plaintiff's claim that the court below erred in finding that the issuance of a notarial deed of this case was entirely null and void against the plaintiff. The ground of appeal on the misunderstanding of legal principles as to the preparation of a notarial deed does not affect the judgment on the claim.
4. Therefore, the part of the judgment of the court below against the defendant as to the counterclaim and damages for delay against 10,000,000 won shall be reversed, and this part of the case shall be remanded to the court below for further proceedings consistent with this Opinion. The remaining grounds of appeal are without merit, and the costs of appeal to the court below shall be assessed against the appellant. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal to the court below.
Justices Lee Yong-woo (Presiding Justice)