[1] In a case where the establishment registration of a neighboring mortgage was cancelled without a cause due to a tort, whether it can be deemed that the registered titleholder suffered a loss of the right to collateral security immediately (negative)

[2] In a case where a registration of creation of a mortgage was cancelled without cause due to a tort committed by a certified judicial scrivener, the case holding that the court below's calculation of the liability ratio of a certified judicial scrivener by 40% is considerably unreasonable

[3] In the comparative negligence of joint tort liability, where the percentage of negligence of each joint tortfeasor is different, the method of assessing the victim's negligence, and where there is a person who intentionally committed a tort among the joint tortfeasor, whether all the tortfeasor cannot make a claim for comparative negligence (negative)

[1] In order to have property damage caused by an illegal act, there must be differences between the property disadvantage caused by the illegal act, i.e., the property condition that would have existed without the illegal act, and the current property condition that caused the illegal act. However, in cases where registration is cancelled without any reason because the requirements for the validity of real rights are not met as the requirements for the validity of real rights, the validity of such real rights is not affected, and where registration is cancelled without any reason, the registered titleholder who was cancelled is presumed to be a legitimate right holder even before the registration of recovery is completed, and the registration cancelled by the procedure for application for registration of recovery can be restored (Article 75 of the Registration of Real Estate Act). Thus, even if the registration of creation of mortgage was cancelled without cause due to the illegal

[2] The case holding that, in the case where the registration of the establishment of a new mortgage was cancelled without any cause against the will of the mortgagee due to a tort committed by a certified judicial scrivener who violated occupational duty, the court below calculated the ratio of liability of the mortgagee himself and the certified judicial scrivener who neglected to confirm the will of the mortgagee as 40% in the case of cancellation of the registration of the establishment of a new mortgage, it is remarkably unreasonable in light of the principle of equity.

[3] Joint tort liability does not seek damages from each tortfeasor's act individually, but is held liable for the tort jointly committed by the tortfeasor. Thus, when the court offsets the amount of negligence on the part of the victim's fault, even if the ratio of negligence against each tortfeasor is different from each other, the victim's negligence is not individually assessed as to each tortfeasor's negligence, but all of them are assessed as a whole as to all of them. However, in assessing the amount of negligence of the victim for offsetting the amount of negligence, it shall be assessed as a whole as to all of the joint tortfeasor's negligence. However, if there is a person who has committed a tort on the part of the joint tortfeasor, it shall not be deemed that there is no negligence by the victim, or that all of the tortfeasor cannot make a claim

[1] Articles 186, 393, and 763 of the Civil Act; Article 75 of the Registration of Real Estate Act / [2] Articles 396 and 763 of the Civil Act; Article 25 of the Certified Judicial Scriveners Act / [3] Articles 396, 760, and 763 of the Civil Act

[1] Supreme Court en banc Decision 91Da33070 delivered on June 23, 1992 (Gong1992, 2235) Supreme Court Decision 2000Da59678 Delivered on October 22, 2002 (Gong2002Ha, 2787) / [3] Supreme Court Decision 2006Da7836 Delivered on June 14, 2007

Plaintiff (Law Firm B case, Attorneys Lee Jong-hwan et al., Counsel for plaintiff-appellant)

Defendant (Attorney Lee Young-young, Counsel for defendant-appellant)

Seoul High Court Decision 2009Na20316 decided July 24, 2009

The judgment below is reversed and the case is remanded to Seoul High Court.

The grounds of appeal are examined.

1. The defendant's ground of appeal No. 4

In order to have property damage caused by an illegal act, there must be differences between the property disadvantage caused by the illegal harmful act, that is, the property condition that would have existed without the illegal act and the current property condition that caused the illegal act (see, e.g., Supreme Court en banc Decision 91Da33070, Jun. 23, 1992). However, where a registration is cancelled without any reason because the requirements for the validity of a real right are not met and the registration is not required to continue to exist, the validity of the real right is not affected, and the registration titleholder of the registration is presumed to be a legitimate right holder even before the recovery registration is completed (see, e.g., Supreme Court Decision 200Da59678, Oct. 22, 2002). Thus, the registration cancelled pursuant to the procedure for the procedure for the recovery registration can be restored (Article 75 of the Registration of Real Estate Act). Even if a registration titleholder of the establishment of a mortgage was cancelled without any cause due to the illegal act, it cannot be deemed that the de

According to the reasoning of the judgment below, the court below determined that the registration of creation of a mortgage of this case was cancelled without any cause due to the Defendant’s tort against the Plaintiff’s will, and based on the premise that the Plaintiff lost the right to collateral security of this case, the court below calculated the amount equivalent to KRW 119,00,000, the maximum debt amount

However, according to the records, the defendant alleged in the court below that "the registration of recovery of the establishment of the mortgage of this case revoked by the plaintiff can be restored to its original state, and thus no damage has occurred." This argument includes the argument that the plaintiff's damage does not reach the scope of the amount of damage caused by the loss of the right to collateral security of this case. In light of the above legal principles, since the registration of establishment of the right to collateral security of this case was cancelled regardless of the plaintiff's intent, and it cannot be readily concluded that the plaintiff lost the right to collateral security of this case. Thus, it is separate from calculating the amount of damage due to losses equivalent to the expenses incurred by the delay in collection of claims due to the impossibility of execution of the right to collateral security and the delay in collection of claims, the amount equivalent to the maximum debt amount of the right to collateral

Therefore, the court below should have deliberated on whether it is possible for the plaintiff to recover the loss incurred by the plaintiff by filing an application for the registration of recovery of the registration of the establishment of a mortgage of this case, and in such case, it should have deliberated on how to calculate the loss incurred by the plaintiff. However, the court below should have determined the amount of the loss as above without conducting such deliberation. Such decision of the court below is erroneous in the misapprehension of legal principles as to the calculation of the amount of damage caused by tort by failing to exhaust all necessary deliberations, which affected the conclusion of the judgment. Thus,

2. The plaintiff's ground of appeal No. 1

A. If the victim was negligent with regard to the occurrence or expansion of damage caused by a tort, such reason must be considered as a matter of course in determining the scope of the tortfeasor's damage compensation. In calculating the ratio of negligence between the two parties, all circumstances related to the occurrence of the accident should be fully considered in light of the purpose of the system of fair burden of damage. The fact-finding and determination of the ratio should not be considerably unreasonable in light of the principle of equity even if it is the exclusive authority of the fact-finding court (see Supreme Court Decision 96Da54560, Feb. 28, 1997, etc.).

B. According to the reasoning of the judgment below, the court below: (a) based on the above evidence adopted by the plaintiff on February 6, 2007; (b) if the plaintiff invests 85 million won in the above company's name, the above company shall pay investment profits of 34 million won in addition to returning the investment principal within six months; (c) if the above company does not pay investment principal and investment profits by the agreed date, it shall pay the plaintiff's additional investment damages calculated at the rate of 50% to the above company's principal and investment interest; (d) the above company entered into an investment agreement with the plaintiff as to the establishment cycle of the right to collateral security regarding the above real estate to secure the plaintiff's principal and investment profits; (e) the defendant's joint principal and the above company's representative director, who was the above company's company, requested the defendant to sell the above company's registration certificate to the defendant on February 7, 2007; and (e) the above company requested the plaintiff's joint principal and the above company to sell the above company's registration certificate to the defendant.

Based on the above facts, the court below held that the defendant's liability for damages suffered by the plaintiff was reasonable on the ground that the defendant, as a certified judicial scrivener, committed an unlawful act of cancelling the registration of the establishment of the creation of the creation of the relocation of this case regardless of the plaintiff's intent in violation of the duty of care to verify that the above female under the law, such as resident registration certificate, etc., was the plaintiff himself, in conducting his affairs as a certified judicial scrivener 1 through the non-party 1, who is his employee, as well as the certificate of the registration of the establishment of the creation of the relocation of this case. However, the court below determined that the plaintiff's liability for damages against the plaintiff should be limited to 40% of the above damages, considering the plaintiff's negligence and the relation between the plaintiff and the above company, and the maximum debt amount of the right of registration of the establishment of the creation of the creation of a mortgage of this case, which is the loss suffered by the plaintiff, and considering the fact that the remaining 34 million won is the investment profit agreed upon by the above company.

C. However, in light of the legal principles as seen earlier, it is difficult to accept the judgment of the court below on offsetting negligence for the following reasons.

(1) In light of the fact that the Plaintiff first requested Nonparty 1 to leave the registration certificate on the registration certificate on the establishment of the mortgage of this case to the above company, first of all, it would be very exceptional to requesting the Plaintiff, who created the instant right to collateral security, to leave the registration certificate to the above company, which is the debtor, by making large investment in the above company and by taking the security on investment money, etc.

However, according to evidence, etc. adopted by the court below through legitimate examination of evidence, the co-defendant 2 appeared to have been present at the court of first instance to the effect that "the above co-defendant 2 was inconsistent with the defendant's argument that "the above co-defendant 2 did not deliver the certificate of completion of registration to the plaintiff" in the police interrogation conducted on April 29, 208, and that "it was prepared to use the documents as it was," and that "the co-defendant 2 was in custody of the certificate of completion of registration from the plaintiff," and it was not possible to give the plaintiff a statement that "the above co-defendant 1 was in conflict with the defendant's argument that he was in custody of the certificate of completion of registration from the plaintiff in the above criminal case." On the premise that "the plaintiff was present at the court of first instance to co-defendant 2 of the court of first instance and the above co-defendant 2 of the court of first instance, who was assigned the certificate of completion of registration to the plaintiff's co-defendant 2 of this case."

In addition, as co-defendant 2 of the first instance trial of this case, the co-defendant 2 of the first instance trial of this case submitted a written answer dated August 7, 2008 stating that “The co-defendant 2 of the first instance trial of this case sufficiently explained that he may create a new re-security or redeem the principal and interest to the Plaintiff who shall sell at a higher price with a full right,” and submitted a written answer to the Plaintiff on August 7, 2008, stating as if the Plaintiff had been aware of the speculative business activities of Co-defendant 2 of the first instance trial, as he had been well aware of the speculative business activities of Co-Defendant 2 of the first instance trial, which violates the purport of the statement made by Co-Defendant 2 of the first instance trial of this case and it is difficult to believe it easily. Furthermore, the written reply includes considerable parts of the contents of the defense of the Defendant, such as “the Defendant has faithfully cope with this position and has not been responsible for the cancellation of the registration document,” and even upon the appearance of the written reply, it constitutes a co-defendant for the Defendant.

In addition, even according to the testimony of the non-party 1, the defendant was entrusted with the registration of the company's business from around 2006 to the co-defendant 2 of the court of first instance with the registration number of the company's business and reached 200 cases. In light of the above transactional relationship between the defendant and the co-defendant 2 of the court of first instance, it is difficult to exclude the possibility that the defendant transferred the company without issuing the registration certificate directly to the plaintiff who is the right to collateral security.

Therefore, in full view of the above circumstances, it is difficult to find that the Plaintiff requested Nonparty 1 to leave the registration certificate for the establishment registration of the instant neighboring mortgage to the said company.

(2) Next, considering whether the co-defendant 2 of the first instance trial requested the defendant to cancel the registration of the establishment of the mortgage of this case to act as the plaintiff at the time when the co-defendant 2 requested the defendant to act as the plaintiff, the defendant's assertion in this case is based on a written response stating "the co-defendant 2 of the first instance trial requested the cancellation registration of the right to collateral security of this case to the non-party 1 who is an employee of the defendant, and the non-party 1 confirmed whether the investment was repaid to the above female guest and requested the cancellation of the right to collateral security." As seen above, the above written response is suspected to have been prepared by the defendant and submitted to the co-defendant 2 of the first instance trial, and it is difficult to understand the above contents by itself that the female guest, who was an investor at the above office, had complied with the above confirmation without any particular reason.

In addition, according to the evidence, etc. adopted by the court below through legitimate investigation of evidence, the non-party 1 stated in the police statement of the above criminal case that "the non-party 1 stated that "the co-defendant 2 of the court of first instance would have concluded a farite agreement with the plaintiff and affixed the plaintiff's seal on the proxy letter of application for cancellation registration of the right to request cancellation registration of the right to collateral security in this case", and the non-party 2 of the court of first instance also requested the cancellation registration of the right to collateral security at the prosecutor's office of May 7, 2008 and requested the cancellation registration of the defendant's office to the defendant's office, and he did not request the plaintiff's certificate of personal seal impression to believe that he was delegated by the plaintiff and did not separately request the plaintiff's personal seal impression." However, the defendant submitted the certificate (Evidence 3) of the non-party 1's statement in this case, which is consistent with the defendant's above argument to the investigation agency of the court of first instance and the non-party 1's testimony.

Meanwhile, the defendant submitted a written statement of Nonparty 3 and 4 of all employees of the above company (Evidence 2-1 and 2) and a written statement of Defendant 2 of the first instance court (Evidence 2-3) with the content consistent with the defendant's argument attached to the above written statement of July 23, 2008 submitted by the court of first instance, but the contents of these written statements are not only difficult to believe in light of the statements made by the co-defendant 2 of the court of first instance and the court of first instance in the investigation agency as seen earlier, and it is doubtful that both the form and contents are similar to those of the above written statement and are unilaterally favorable to the defendant, and that the defendant prepared it and submitted it with the seals affixed from each of the holders

In addition, in the preparatory document submitted on November 7, 2008, the plaintiff requested the defendant to submit the case register stating the method and details of confirming the plaintiff himself, with respect to the application for cancellation of the registration of the establishment of the establishment of the neighboring mortgage of this case. The case register was prepared by a certified judicial scrivener pursuant to Article 25 of the Certified Judicial Scriveners Act on the method and contents of confirming that the delegated case is the principal or his representative. However, the defendant did not submit the case register requested by the plaintiff. This is also a reason why the defendant raises doubt about the credibility of the defendant's above assertion.

Therefore, in light of these circumstances, it is difficult to recognize the fact that the co-defendant 2 of the first instance trial requested the Defendant to file an application for cancellation registration of the registration of the establishment of the creation of the creation of the creation of the root of this case with the Defendant that he belongs to Nonparty 1 by having a female under the name of the

D. Therefore, under the premise of the above circumstances, the above registration certificate was issued to the co-defendant 2 of the first instance court, not the plaintiff, who is the right to collateral security, but also the cancellation of the registration of creation of a new mortgage, the court below assessed it as smaller than the plaintiff's negligence and assessed as 40% of the defendant's liability ratio in light of the principle of equity. Such judgment of the court below is erroneous in the misapprehension of legal principles as to limitation of liability by recognizing the premise in violation of the logical rule and the rule of experience, thereby affecting the conclusion of the judgment. Thus, the ground of appeal pointing this out is with merit.

3. On the second ground for appeal by the plaintiff

Joint tort liability does not individually seek damages from each tortfeasor's act, but is held liable against each tortfeasor's act jointly committed. Thus, when the court offsets the victim's negligence, even if the ratio of negligence against each tortfeasor is different from each other, the victim's negligence is not individually assessed against each tortfeasor's negligence, but the whole evaluation of each tortfeasor's negligence against all the joint tortfeasor's negligence should be assessed as a whole. However, in assessing the victim's negligence for offsetting the negligence, it does not mean that if there is a person who has intentionally committed a tort among the joint tortfeasor, the victim shall be deemed not to have been negligent, or that all the tortfeasor cannot make a claim for offsetting the negligence (see Supreme Court Decision 2006Da7836, Jun. 14, 2007, etc.).

In light of the above legal principles, even if the defendant's above error constituted the above act of co-defendant 2 of the court of first instance and joint tort, there is room for limiting liability against the defendant on the ground of the plaintiff's negligence unlike co-defendant 2 of the court of first instance. Thus, the court below's judgment to the same purport is just, and there is no error in the misapprehension of legal principles as to comparative negligence of joint tort, contrary to the allegation in the

4. Judgment on the remainder of the Defendant’s grounds of appeal

A. As to the first ground for appeal

As seen earlier, the fact that Co-Defendant 2 of the first instance trial held the certificate of registration for the cancellation of the registration for the establishment of the establishment of the creation of the creation of the creation of the creation of the creation of the creation of the neighboring property of this case cannot be deemed as the Plaintiff indicating the granting of the right to representation concerning the application for the cancellation registration. In addition, a certified judicial scrivener shall, upon being entrusted with the case, submit or present a certificate prepared in accordance with statutes, such as resident registration certificates and certificates of seal impression, etc., or verify that he/she is either the delegating or his/her agent (Article 25 of the Certified Judicial Scriveners Act). In addition, he/she was negligent by failing to know that the co-defendant 2 of the first instance trial did not have the right to representation concerning the application for the cancellation registration of the

Therefore, the judgment of the court below that rejected the defendant's assertion of expression representation in the same purport is just and acceptable, and there is no error in the misapprehension of legal principles as to expression representation, as otherwise alleged in the grounds of appeal.

B. Regarding ground of appeal No. 2

The ratification of an unauthorized representation or invalidation is a single act with knowledge of the fact that the effect of the act is attributed to the person in question, and it does not require a certain method with regard to the method of expressing his/her intent, explicitly or implicitly. However, in order to recognize an implied ratification, there must be circumstances to deem that the person in question has fully understood the legal status of the act in question and that the result of the act belongs to him/her on the basis of his/her intention. Therefore, in determining this, various relevant circumstances should be carefully examined (see Supreme Court Decision 2009Da37831, Sept. 24, 2009, etc.).

In light of the above legal principles, we affirm the judgment of the court below that the plaintiff cannot be deemed to have ratified the cancellation of the right to collateral security of the above company only with the fact that the plaintiff received KRW 10 million from the above company after the cancellation of the right to collateral security of this case, and there is no error in the misapprehension of legal principles as to ratification of the right to collateral

C. Regarding ground of appeal No. 3

In light of the evidence, etc. adopted by the court below through legitimate evidence examination, it is just for the court below to find that the person who has created the right to collateral security and the debtor submitted a registration certificate to a certified judicial scrivener upon delegation of cancellation of the right to collateral security has an intention of consent of the person who has created the right to collateral security, and there is no such practice, and even if such practice exists, it is contrary to the provisions of the above Certified Judicial Scriveners Act, so it cannot be recognized that the plaintiff has expressed his/her intention of consent. Accordingly, the court below's decision to the same purport is justified,

5. Conclusion

Therefore, the judgment of the court below is reversed and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Cha Han-sung (Presiding Justice)