(영문) 서울고등법원 2019.1.31. 선고 2018나2018717 판결

The defendant shall pay 300,000,000 won jointly and severally with Co-Defendant C and D, and 15% interest per annum from the day following the delivery of a copy of the complaint of this case to the day of rendering a judgment of the first instance, and 5% interest per annum from the next day to the day of full payment.

[Purpose of Appeal by Plaintiffs]

The part of the judgment of the court of first instance against the plaintiffs shall be revoked. The defendant shall jointly and severally pay to the plaintiffs 240,000,000 won and 5% interest per annum from October 14, 2016 to January 19, 2018, and 15% per annum from the next day to the day of full payment.

【Purpose of Defendant’s Appeal】

Among the judgment of the first instance, the part against the defendant shall be revoked, and all plaintiffs' claims corresponding to the revoked part shall be dismissed.

Reasons

1. Basic facts

The real estate in which the wife population H, I, J, and K (hereinafter referred to as the "real estate in this case") is owned by the co-defendant D (hereinafter referred to as "D before the opening of the name: E; hereinafter referred to as "D") and D (the name of 1931 and hereinafter referred to as "D") whose name is the same.

On January 30, 2015, the registration of ownership transfer under the name of the co-defendant C (hereinafter referred to as the "C") of the court of first instance (hereinafter referred to as the "registration of ownership transfer"), the plaintiffs of the right to collateral security, the maximum debt amount of 450,000,000 won, and the registration of establishment of a neighboring mortgage to the debtor C (hereinafter referred to as the "registration of establishment of a neighboring mortgage of this case") was completed by Suwon District Court No. 16670 and 16671 on January 30, 205.

The defendant, as a certified judicial scrivener operating a certified judicial scrivener's office, delegated the application of the ownership transfer registration to D and performed it. At that time, the defendant prepared a written confirmation that "seller (D) had completed the registration of ownership transfer to C and confirmed the identity of the seller" (hereinafter referred to as "written confirmation of this case").

On January 30, 2015, the Plaintiffs leased C KRW 300,000,000 to C as collateral for the said collateral (hereinafter “instant loan”) at a rate of 2.5% on March 30, 2015 on the date of repayment (hereinafter “the date of repayment”).

On February 10, 2015, the registration for the transfer of ownership and the registration for the establishment of a neighboring mortgage was proved to have been completed by forged documents, and was revoked on June 8, 2016.

[Ground of recognition] The Gap evidence Nos. 1 through 4, Eul evidence Nos. 2 and the purport of the whole pleadings

2. The parties' assertion

A. The plaintiffs' assertion

The defendant neglected his duty of care as a certified judicial scrivener and failed to verify the authenticity of the documents submitted by D. In addition, the defendant prepared and ordered the plaintiffs to confirm the authenticity of the documents submitted by D. Accordingly, the registration of ownership transfer of this case that is null and void and registration of the establishment of a neighboring mortgage were made, and the plaintiffs were trusted in lending KRW 300,000 to C.

Therefore, the defendant is liable to pay the amount equivalent to the loan and damages for delay to the plaintiffs who jointly committed a tort with D, etc. as compensation for damages.

B. Defendant’s assertion

The Defendant fulfilled the duty of care as a certified judicial scrivener in the process of implementing the application for the registration of transfer of ownership of this case. The Defendant was unable to know whether the document was forged or not. Since the loan of this case was already conducted prior to the Defendant’s act, there was no causation between the Defendant’s negligence and the damages

3. Determination

(a) Occurrence of liability for damages;

1) Relevant legal principles

According to the purport of Article 51 of the Registration of Real Estate Act and Article 25 of the Certified Judicial Scriveners Act, when there is no information about completion of registration by a person responsible for registration, the identification under Article 51 of the Registration of Real Estate Act, which a certified judicial scrivener or an attorney-at-law (hereinafter referred to as "certified judicial scrivener, etc.") shall, in principle, be conducted in lieu of a registrar's duty to verify whether the person entrusted an application for registration and the person responsible for registration are the same person. A certified judicial scrivener, etc. is obligated to verify with the due care required in the course of performing his/her duties when he/she is the same person. In cases where any circumstance to suspect a person responsible for registration is not discovered because a certified judicial scrivener, etc. has submitted or presented his/her resident registration certificate or a certificate of personal seal to verify that person is the person himself/herself or his/her agent, he/she can verify his/her identity only with such certificate, but if there are circumstances to suspect otherwise in the process of verification, he/she

(ii) the facts of recognition

(a) An act of false entry into public electromagnetic records, etc. D;

D around October 2014, at the same time with G, etc., the real estate in this case owned by Dong name was opened in the name of Dong name as D with the fact that the resident registration number of Dong name was not indicated in the column for the holder of ownership transfer registration of D with respect to the real estate in this case owned by Dong name, and was recruited to dispose of the real estate in a way that pretends as if it is the owner of the

D The name was changed from 'E' to 'D', and the resident registration certificate was issued in the name of 'D'. Furthermore, in order to make the address, date of transfer, etc. of the abstract of the resident registration record card of this case coincide with D's address, date of transfer, etc., 'the address, date of transfer, and date of change' in the descriptions of the resident registration record card of this case 'Sdong-gu Seoul Metropolitan Government L, 1972-108, 1972-10-08', 'the date of transfer, 'the date of transfer, 'the date of transfer', 'the Gyeonggi-do M& Ma, 1974-03, 1974-05-03 transfer'(Evidence evidence 2-2).

B) The process of registering the ownership transfer of the instant case and the registration of the establishment of a mortgage

D The Defendant entrusted the Defendant with an application for registration of transfer of ownership to purchase and sell as of December 18, 2014 the name of the Dong, who is the owner of the instant real estate, pretended to be D, and the name of the owner of the instant real estate, and the application for registration of transfer of ownership as of December 18, 2014, and the registration certificate was lost while presenting the resident registration certificate after the opening of the name and the abstract of the forged resident registration record card as seen earlier.

On January 1, 2015, the Defendant, without knowing the forgery of the foregoing documents, prepared a document confirming that he/she was the person liable for registration based on the D’s resident registration certificate pursuant to Article 51 of the Registration of Real Estate Act (hereinafter “instant document”). The Defendant filed an application for the registration of transfer of ownership with respect to the instant real estate with D and C’s sales contract as of December 18, 2014 and the instant confirmation document, etc., attached to D and C’s resident registration certificate.

On the same day, the Defendant also received delegation of the application for the registration of the establishment of a neighboring mortgage of this case. The Defendant prepared and delivered the confirmation document of this case to the Plaintiffs around that time.

The registration officer in charge of the registration office of Suwon District Court entered the ownership transfer registration of this case and the establishment registration of neighboring mortgage on the same day in the register without knowing that he/she is an application for registration of transfer by forged documents as above.

3) Criminal punishment against D

D was convicted on January 25, 2017 of the aforementioned criminal facts by imprisonment with prison labor for ten months, due to any false entry into public electronic records, etc., and any false entry into public electronic records, etc., at the Central District Court. The foregoing judgment became final and conclusive on June 23, 2017 (Ji Government District Court Decision 2015No4965, 2017No438, Supreme Court Decision 2017Do6387).

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 5, Eul evidence No. 2, witness N of the first instance trial,O, witness S's testimony and the purport of the whole pleadings

(iv)assessment;

A certified judicial scrivener with professional knowledge of registration, who has entrusted the application for registration with due care required for his duties, and who is a person responsible for registration on the registry, shall verify whether the person is the same person or not.

In this case, D loses the registration certificate of the real estate of this case to the Defendant and there is no certificate of completion. In addition, in the registry of the real estate of this case, Dong name, the actual owner, does not indicate D resident registration number.

In such cases, in order to verify whether D, who is the actual owner of the instant real estate, is the same as D and the real owner of the instant real estate, a thorough examination of the owner’s name and address indicated in the registry of the instant real estate must be conducted with due care. In such process, not only depends on the abstract of the forged resident registration record card presented by D but also on the verification based on the abstract of the resident registration record card provided by a government office, etc., should not be conducted.

Furthermore, at the time of the Defendant’s handling of affairs, the government civil petition portal 24 m. (www. minon.go.kr) provided services to verify the authenticity using the issuance confirmation number of the resident registration card (a certified copy and abstract). The lower part of the abstract of the resident registration card presented by D also includes the same purport (However, the “issuance confirmation number” is written in writing as the “issuance Certificate”). The Defendant, even if not directly with the government office, could have confirmed it simply and easily.

Nevertheless, the defendant prepared the confirmation document of this case without confirming the authenticity of the abstract of the resident registration record card provided by D through the government civil petition portal, etc., prepared and sent the confirmation document of this case to the plaintiffs, and performed the work related to the registration of transfer of ownership of this case and the registration procedure of establishment

The Defendant granted the Plaintiffs the trust that the instant ownership transfer registration and the establishment registration of the neighboring mortgage will be completed normally without any defect, thereby contributing to the Plaintiffs’ lending to C. reasonable causation between the Defendant’s negligence and the damages incurred from the instant lending may be recognized. The Defendant’s negligence constitutes D and C’s joint tort.

Therefore, the defendant is liable to compensate the plaintiffs for damages arising from the acts of violating the duty of care required in the course of performing his duties and the acts of preparing the letter of confirmation of this case jointly with D and C.

B. Limitation of liability for damages

The instant registration of ownership transfer and the registration of the establishment of a neighboring mortgage were completed based on the criminal act, such as D. There is no evidence to prove that the Defendant was involved in the instant crime. The documents provided by D were completely fabricated or forged, and it was difficult for the Defendant to find out the forgery of the abstract of the resident registration record card on the land. The Defendant did not know about the authenticity of the abstract of the resident registration record card provided by the government civil petition portal.

In the process of the instant lending, the Plaintiffs did not fully endeavor to verify whether C purchases the instant real estate from the genuine owner, even though they are well aware that the owner’s resident registration number is not indicated in the registry of the instant real estate in the process of the instant lending, and received the instant lending only

Considering such various circumstances, it is reasonable to limit the defendant's liability for damages to 20%.

[Grounds for recognition] Evidence, Gap evidence No. 15, the purport of the whole pleadings

C. Sub-committee

Therefore, in collaboration with C and D, the Defendant is obligated to pay damages for delay calculated at the rate of 60,000,000 won, which is 20% of the Plaintiffs’ damages, and 60,000,000 won, which is equivalent to 30,000,000 won for the Plaintiffs’ damages, and the amount of damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act, from October 14, 2016 to January 19, 2018, the date following the delivery date of a copy of the complaint of this case claimed by the Plaintiffs, which is the date of the first instance judgment, to the date of full payment. The Plaintiffs’ assertion is with merit within the scope of recognition.

4. Conclusion

The plaintiffs' claims shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed, respectively, without merit. The judgment of the court of first instance is justifiable in conclusion. The plaintiffs' appeal and the defendant's appeal are dismissed as they are without merit.