[2] The case holding that a certified judicial scrivener upon receipt of a request for registration has failed to perform his/her duty to verify the identity when he/she confirms the identity of the owner without a certificate of completion of registration, where he/she presented only a copy of his/her resident registration certificate which cannot be confirmed in his/her photograph and did not take other verification measures despite the absence of any other verification measures, and prepares a document for confirmation in trust with the owner's child's telephone conversations, etc.

[3] Whether the circumstances in which the tortfeasor did not recognize but the general public recognized should also be considered when determining the predictability of the circumstances that the third party would incur losses by reliance and lending real estate as collateral where the invalid ownership transfer registration has been completed due to an illegal act by the illegal person (affirmative)

[4] Where a certified judicial scrivener entrusted with registration of the transfer of real estate ownership neglects his/her duty to verify, the case holding that a certified judicial scrivener shall be liable for damages against a financial institution which trusted the registration of transfer of ownership and loaned real estate as security (Provided, That 50% comparative negligence)

1. As to ground of appeal No. 1 (misunderstanding of legal principles as to the duty of care of a certified judicial scrivener)

According to the purport of Article 49 of the Registration of Real Estate Act and Article 25 of the Certified Judicial Scriveners Act, where no certificate of completion of registration exists, the verification under Article 49 of the Registration of Real Estate Act, which a certified judicial scrivener, etc. shall be conducted on behalf of the registrar, in principle, instead of the registrar. Thus, a certified judicial scrivener, etc. is obligated to verify the identity of a person who entrusts an application for registration and a person who is responsible for registration on the registry, with due care required in the course of performing his/her duties. Where any circumstance is not discovered to suspect that a delegated person is the principal or agent, a certified judicial scrivener, etc. is required to submit or present a resident registration certificate, passport, driver's license or certificate of personal seal to verify that he/she is the principal or agent. However, if there are circumstances to suspect otherwise in the process of verification, he/she is obligated to verify the identity of a person who is responsible for registration on the other hand through several methods (see, e.g., Supreme Court Decision 9Da63107, Jul. 28, 2000).

In light of the records, the court below generally presumed the same legal principles, and the defendant did not neglect the duty of confirmation as a certified judicial scrivener to prepare the confirmation document, and thereafter, it is hard to confirm himself in a photograph because the owner who assumes the identity of the non-party 1 lost his resident registration certificate in the process of confirming the identity of the non-party 1. The defendant presented only a copy of the resident registration certificate which cannot be confirmed the identity of the non-party 1, and the non-party 2 was present to delegate the application for registration, and did not take other confirmation measures, and the non-party 1's child called in advance, and the non-party 3 was gathering the non-party 1's ability to confirm the fact that the non-party 2 and the non-party 1 was issued the non-party 1's resident registration certificate, the non-party 1's family register copy, and the non-party 1's personal seal certificate was submitted from the non-party 2 and the non-party 1 cannot be viewed as being in violation of the rules of evidence.

In addition, some of the cases cited in the grounds of appeal are inappropriate to be invoked as different main issues of this case and its main issues.

2. As to ground of appeal No. 2 (misunderstanding of legal principles as to causal relations)

In a case where an invalidation of the cause of a real estate has been registered, it shall be considered that a third party would normally have suffered damage by reliance on the registration of the last registrant and lending the real estate as security. (See Supreme Court Decisions 92Da44312, Apr. 27, 1993; 96Da25807, 25814, Sept. 20, 196; 96Da25814, Sept. 20, 1996; 96Da25807, 25814, etc.). As such, in determining the possibility of predictability, not only the situation in which the tortfeasor was subjectively perceived, but also the situation in which the principal or the general person (average) could have been recognized, even if there were any circumstances in which he did not recognize.

In light of the records, on the premise of the same legal principle as a substitute, the judgment of the court below that there is a proximate causal relation between the defendant's act of having the land of this case registered by the non-party 2 and the damage caused by the plaintiff's loan of this case as security on the land of this case based on the confirmation document and the damage caused by the plaintiff's loan of this case is just [i.e., even if the defendant did not recognize the possibility of receiving security loan after the above non-party 2 and the non-party 3 illegally registered the ownership transfer as alleged in the ground of appeal, the above circumstance cannot be viewed as being excluded from the determination of predictability because the defendant or the general (average) could have known.]

3. Other grounds of appeal (Ground of appeal Nos. 3 through 6)

A. In light of the relevant legal principles and records, the court below acknowledged the fact that the non-party 1 had withdrawn the remainder of the loan without verifying the dispute on September 8, 200, upon receiving a written notice of confirmation from the competent authorities, etc., and the non-party 2 and the non-party 3 knew that the ownership transfer registration has been made in the middle of the land of this case, and requested the defendant and the non-party 1 to suspend the payment of the loan amounting to KRW 122,00,000, which had been left in the account of the non-party 2 and the non-party 3, not until the time when the plaintiff's office was found, and the defendant and the non-party 1 requested the non-party 1 to suspend the payment of the loan amounting to KRW 122,00,000. The court below did not err in the misapprehension of legal principles as to the remaining damages caused by the non-party 1's failure to confirm the payment suspension due to the plaintiff's fault or omission.

In addition, the fact-finding or the determination of the ratio of comparative negligence in a tort compensation case is not deemed considerably unreasonable in light of the principle of equity, unless it is deemed that it belongs to the exclusive authority of the fact-finding court (see Supreme Court Decision 2005Da57707, Feb. 10, 2006, etc.). The court below held that the judgment of the court below is not considerably unreasonable in light of the principle of equity, since the plaintiff's negligence, such as the above, was caused by the occurrence or expansion of damages caused by the instant case, while the plaintiff's negligence was a cause for the occurrence or expansion of damages. This part of the judgment of the court below is not erroneous in the misapprehension of legal principles affecting the conclusion of the judgment, contrary to what is alleged in the grounds of appeal, or in the misapprehension of facts due to a violation of the rules of evidence or an incomplete hearing.

B. In light of the relevant legal principles and records, the court below determined that the amount of indemnity should not be deducted from the amount of damages that the defendant should compensate for, on April 15, 2003, on the ground that the plaintiff lost the lawsuit filed by the non-party 1 against the non-party 2,22,00,000 won, and then received a total of KRW 61,748,000 from the managing director, who is an employee, on the ground that the suspension of payment was unjustly released, but the above reasons for imposing indemnity are not directly related to the defendant's tort. However, the above reasons for imposing indemnity are not directly related to the defendant's tort, but it is sufficiently taken into account as the above reasons for offsetting negligence. Further, the court below did not err in the misapprehension of legal principles as to the maximum debt amount of KRW 714,00,000 on April 15, 203, which is the non-party 200.

In addition, the other cases cited in the grounds of appeal in relation to the claim of the above indemnity insurance are inappropriate to be invoked as those different from this case and its main issues.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Ahn Dai-hee (Presiding Justice)