Scope of the authority of an administrator of absentee

Since an absentee administrator appointed by the court is a kind of legal representative appointed upon the request of a person prescribed by law, he/she shall perform his/her duties such as property management, etc. with the duty of due care of a good manager. Such management shall be limited to the preservation or improvement of property for an absentee. And even a disposal act permitted by the court beyond the above scope shall be limited to the extent for the absentee.

Articles 25 and 118 of the Civil Act

Plaintiff

The Bank of Korea, Inc.

Seoul Central District Court (75 Gohap1474) in the first instance trial

1. Revocation of the original judgment;

2. As to the real estate stated in the annexed sheet (1) through (9) with respect to the plaintiff

(1) The period for establishing a mortgage agreement created on November 24, 1965, which was based on the ground of No. 31440, which was received by the Seoul District Court on January 25, 1965, comprised of KRW 3,200,000 with the maximum debt amount, and the debtor's central superior

② On January 27, 1966, the ground for the receipt of the above court No. 1500, Jan. 24, 1966, set aside a maximum debt amount of 10,000,000 won, and a mortgage-backed contract concluded with the above company of the debtor.

③ On October 8, 1966, the ground for the above court’s receipt of No. 25479, Sep. 30, 1966; the maximum debt amount of KRW 24,00,000; and the period for establishing a right to collateral security established by the said company as the obligor.

(4) The ground for the above court’s receipt of October 8, 1966 No. 25480, Sept. 30, 1966, which was set forth in the Act, 27,000,000 won with the maximum debt amount, and the period for establishing the right to collateral security that

⑤ On April 22, 1967, the ground for the above court No. 8996, Apr. 1, 1996, which was received by the above court, set forth in the contract to establish a right to collateral security with the debtor company as the above company.

(6) The term of the contract to establish a mortgage, which was caused by the above court's receipt of September 30, 1968 No. 23464, Sep. 30, 1968; the maximum amount of claims KRW 100,000,000; and the debtor's company; and

(7) On September 24, 1969, the court received the aforementioned court on September 24, 1969: (a) followed the procedure for registration of cancellation of each registration of creation of mortgage on the basis of the mortgage contract that was concluded by the debtor and the company as the above company; and (b) the procedure for registration of cancellation of each registration of creation of mortgage on the basis of the mortgage contract

3. The costs of the lawsuit shall be borne by the defendant in both the first and second instances.

The same shall apply to the order.

1. The defendant asserts that the plaintiff's principal claim against the administrator of the right to collateral security shall be dismissed on the ground that the plaintiff's principal claim against the administrator of the right to collateral security is an act beyond the authority of the administrator of the right to the administrator of the right to collateral security.

However, it is not necessary to obtain the permission of the court as an act within the authority of the administrator when an absentee trustee shows that the lawsuit filed by the administrator is an act of preserving the property, and the lawsuit on each real estate listed in the separate sheet (hereinafter referred to as this case's real estate) is merely an act of preserving the status of the management property. Thus, the defendant's above main defense of safety is groundless.

2. Judgment on the merits

As stated in paragraph (2) above, the facts that each establishment of a mortgage was registered as a collateral for the non-party to the dispute. (1) As to the circumstances during which such establishment was registered, comprehensively taking account of the entries in Gap evidence 1, 6 evidence 1 through 6 (each contract), 7 evidence 2 and Eul evidence 2, etc., the real estate was owned by the plaintiff, and it was impossible for the debtor to easily take place at the time of June 25, 1954 because it was missing, the non-party 1, the head of the plaintiff bank and the non-party 2 were appointed as an administrator for the non-party 1, the non-party 1, the non-party 2 and the non-party 1, the non-party 1, the administrator of the non-party 2, the non-party 1, the non-party 4 and the non-party 1, the non-party 1, the administrator of the non-party 1, the non-party 2 and the non-party 1, the non-party 1, the defendant 2 and the non-party 1, the non-party 1, the defendant 2.

The purpose of the absentee property management system is to enable an administrator to obtain social and economic benefits along with his own interest, to manage the remaining property of the absentee for the benefit of the remaining spouse and his heir, and to transfer all the property which he managed by the absentee to his heir. An administrator appointed by the court is a kind of legal representative appointed at the request of a person prescribed by law and has a statutory delegation relation, such as property management, etc. as long as the administrator is in a statutory delegation relation. The management act is limited to the scope of preservation or improvement of property for the absentee, and the disposal act permitted by the court beyond the above scope is limited to the extent for the sake of the absentee.

However, the Plaintiff’s act of creating the right to collateral security is not for an absentee or his heir, but for the sole purpose of bearing the obligations of the non-party central company, which is only a third party. Thus, even if the court’s permission for sale and disposal was granted, since the administrator of the non-party cannot perform the act of creating the right to collateral security other than the permitted sale and disposal as it is merely for the legal representative, the above act of creating the right to collateral security is eventually null and void. Accordingly, the Defendant’s act of establishing the right to collateral security is a lawful act of establishing the property for which the administrator is permitted to sell and dispose of. (Supreme Court Decision 4289No677 delivered on March 23, 1957.) The act of creating the right to collateral security is required within a narrow range than sale, and it appears that the administrator is the head of the non-party 1 and his heir as the head of the non-party 1, who is the administrator, and therefore, is considered to be for the absentee, and therefore, it is not reasonable for the plaintiff’s administrator to believe the duty of care.

Therefore, in light of the above-mentioned facts, the non-party 1 and the non-party 2 were sold to the non-party 4 and the non-party 1 and the non-party 2 were assigned to the non-party 4 and the non-party 1 and the non-party 2 were assigned to the non-party 1 and the non-party 2's testimony and the non-party 2's testimony (excluding the non-party 1 and the non-party 2's testimony) as well as the fact inquiry about the non-party 1 and the non-party 2's inquiry about the non-party 4, the non-party 1 and the non-party 1 and the non-party 4 were assigned to the non-party 4 and the non-party 1 and the non-party 2 were assigned to the non-party 4 and the non-party 1 and the non-party 1 and the non-party 2 were assigned to the non-party 1 and the non-party 1 and the non-party 4 were assigned to the non-party 1 and the non-party 16.

Therefore, in light of the above facts, it can not be seen that there was any obligation, etc. between the absentee and the non-party central corporation, and at the same time, it cannot be deemed that only bears the obligation, etc. to the defendant bank, and it is for the absentee or his heir, and thus it does not go against the purport of the court's permission to sell and dispose of the property. Even if the court permitted the administrator to sell and dispose of the property, the defendant bank did not seem to have any means to consider whether it is related to the debtor's lending of money on several occasions as long as it appears that the debtor did not have any relation with the absentee, and even after the administrator is replaced, it did not seem to have any means to establish a new mortgage with the replaced administrator and the non-party central corporation (the maximum amount of the claim is 5,00,000 won in total, 197,000 won in total, 197,000 won in total, 25,000 won in total, which is more than 157,000.

Thus, this case's act of creating a collateral security is not for an absentee or his heir, but beyond the scope of the disposition of sale by the court permitted for the purpose of absentee, etc., and it is not for the non-party 1, the administrator, who is the trust administrator, to believe that the defendant bank had legitimate authority in doing any act beyond the permitted authority. This is null and void, and thus, the registration of creation of a collateral security on the basis of the order 2 of this case should be cancelled as it is without any ground. The judgment of the court below dismissed the plaintiff's claim in whole with different conclusions. This decision of the court below is unfair, and the plaintiff's appeal is revoked, and it is so decided as per Disposition by the court below with the burden of the defendant who has lost both the first and second judgment.

[Attachment]

Judges Park Young-young (Presiding Judge)