[근저당말소][공1980.2.1.(625),12403]
Cases of recognizing an expression representation in a derivative representation;
After the Plaintiff sold the land to another person, and then the purchaser asks the Plaintiff’s agent Gap (A) to pay the remainder by lending the documents that can be registered for transfer of ownership to the Plaintiff’s agent (A), such as Nonparty B (B). If the Plaintiff’s agent Gap (A) followed the documents such as the Plaintiff’s certificate of seal impression, resident registration card, and mortgage contract, etc., and the Nonparty B (B) made a registration of establishment of a collateral security in the name of the Defendant on the land, there is a justifiable reason to believe the above Nonparty B (B) as the Plaintiff’s agent.
Article 123 of the Civil Act
Supreme Court Decision 62Da508 Delivered on October 18, 1962
Plaintiff
Attorney Lee Jae-won, Counsel for the defendant-appellant
Seoul High Court Decision 79Na646 delivered on May 23, 1979
The original judgment is reversed, and the case is remanded to the Seoul High Court.
The grounds of appeal by the defendant's attorney are examined.
The judgment of the court below did not dispute that the defendant did not have any claim against the plaintiff, and the plaintiff accepted the claim on the ground that the plaintiff had terminated the contract as stated in the statement against the defendant.
However, as recognized by the judgment of the court of first instance, it can be acknowledged that the non-party 2 had affixed the plaintiff's seal on one copy of the contract, power of attorney, and security agreement, and that the non-party 1 had no direct loan to the plaintiff under the purport of the oral argument, and that the non-party 2 had no legitimate reasons for 50,000 won to believe that the non-party 2 had no legitimate reasons for 50,000 won to believe that the defendant's act of establishing a mortgage on the land of this case had no right of representation, with all documents necessary for establishing a mortgage on the land of this case, and that the non-party 2 had no legitimate reasons for 80,000 won to believe that the non-party 2 had no right of representation for the plaintiff. Thus, the judgment of the court below cannot be accepted as the defendant's act of establishing a mortgage on the ground that the non-party 2 had no legitimate reasons for 50,000 won to believe that he had no right of representation for the plaintiff.
The case shall be returned to the original court in order to make a new trial and determination.
It is so decided as per Disposition by the assent of all participating Justices.
Justices Jeong Tae-won (Presiding Justice)