Fz. 2 Dong-dong community credit cooperatives (Attorney Jeon Soo-soo, Counsel for the plaintiff-appellant)

Korea

April 5, 2012

Seoul Central District Court Decision 2011Gahap21919 Decided October 14, 2011

1. All appeals filed by the plaintiff and the defendant are dismissed.

2. The costs of appeal shall be borne by each party.

The defendant shall pay to the plaintiff 220,000,000 won and 160,00,000 won out of them at the rate of 22% per annum from January 22, 2010 to the day of full payment.

[Plaintiff]

The judgment of the first instance shall be amended as follows:

The defendant shall pay to the plaintiff 220,000,000 won and 160,00,000 won out of them at the rate of 22% per annum from January 22, 2010 to the day of full payment.

[Defendant]

The part against the defendant in the judgment of the first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

1. Basic facts

The reasons for this part are the same as the judgment of the court of first instance, and they are cited by the main sentence of Article 420 of the Civil Procedure Act.

2. Judgment on the assertion

A. Existence of liability for damages

(1) In the event of loss of registration certificate, the duty of care of the accompanying documents and motive officer

According to Articles 28, 40, and 49 of the former Registration of Real Estate Act (wholly amended by Act No. 10580, Apr. 12, 201) (wholly amended by Act No. 10580, Apr. 12, 201; hereinafter the same), where a person liable for registration appoints an agent with loss of the certificate of registration and files an application

In other words, when a person liable for registration appoints a representative without attending a registry directly, and applies for registration, the certificate of registration and the document verifying the authority of the representative shall be attached to the application form. If the certificate of registration is lost, the document verifying that the person liable for registration is delegated by the person liable for registration or his/her legal representative shall be attached to the application form. ② If the representative is not a lawyer or a certified judicial scrivener, the document verifying his/her authority shall be attached to the application form.

① In the above case, there is an explicit provision that an attorney-at-law or a certified judicial scrivener must verify his identity based on resident registration certificates, etc. (Article 49(2) and (3) of the former Registration of Real Estate Act), but in the above case, it is not clear in the text of the law as to whether a notary public is unable to attend the meeting and obtain authentication.

However, the purpose of having a person liable for registration submit a certificate of registration is to prevent false registration and ensure the authenticity of registration by enabling a registration officer to verify whether a person who is disqualified for the existing right due to registration is a person liable for registration. In the event the certificate of registration is destroyed, a strict system for verifying the identity of a person liable for registration is established as above in order to ensure the authenticity of registration; in order for a notary public to verify the authenticity of “the portion prepared by the person liable for registration from the person liable for registration,” unlike an attorney-at-law or a certified judicial scrivener, it is necessary to clearly confirm the authenticity from the person liable for registration; and in case where a notary public appoints a person who is not the attorney-at-law or a certified judicial scrivener as his/her agent and appoints a person who is not the attorney-at-law or a certified judicial scrivener as his/her agent, it is reasonable to interpret and apply relaxed system for verifying the identity of the person liable for registration when a notary public appoints an applicant for registration as the person liable for registration, and interpret that the person is not able to be authenticated (see Supreme Court precedents 496-6, 75-79-8-8).

Therefore, where a registration certificate is destroyed or lost, an application for registration shall not be accepted merely with the mere fact that there is a notarial act on the application or power of attorney. In the event that the application or power of attorney does not meet the above requirements, a registration officer has an official duty to verify whether the person liable for registration was present and has received notarial acts, and if a notarial document does not meet the above requirements, the application for registration shall be dismissed in accordance with

(2) As to the first and second real estate of this case

The letter of delegation issued by Nonparty 1 is forged by Nonparty 2 on the ground of the loss of the certificate of registration, and the certificate of this case was issued to Nonparty 2 by commissioning the certification of the above power of delegation to ○○○ General Law Office, and the applicant for registration of ownership transfer was accompanied by the certificate of this case, and the registrar completed the registration of ownership transfer of this case Nos. 1 and 2 as requested by Nonparty 1. The fact that Nonparty 1 completed the registration of ownership transfer was based on the above basic facts.

According to the above facts, the certificate of this case attached at the time of applying for the registration of transfer of ownership of the first and second real estate in this case is not authenticated by Nonparty 2, who is the person liable for registration, but is merely present at the time of Nonparty 1’s appearance as an agent even though Nonparty 2 is not the person responsible for registration, and is merely a document authenticated, and thus, if the certificate of registration is destroyed or lost, it does not constitute a document in lieu of the certificate of registration. Thus, the registrar ordered to correct necessary documents or dismissed the application for registration pursuant to Article 5 subparag. 8 of the former Registration of Real Estate Act. However, although the registrar did not take such measures, it is negligent by failing to perform the registration [it does not change solely on the ground that the registration precedent of the Supreme Court, which is clear that the delegated agent of the person liable for registration is not subject to authentication, is only one (5-59).

As such, the registration officer's negligence on the first and second real estate of this case completed the registration of ownership transfer, and the plaintiff believed that the above registration of ownership transfer was true and lent money to the first and second real estate of this case to the non-party 1 as a result of the cancellation of the registration of creation of mortgage, but the defendant is liable for compensation for damages suffered by the plaintiff due to the negligence in the course of performing the registration duties by the registrar who is a public official under his jurisdiction.

(3) As to the third real estate of this case

The plaintiff asserts that, although the non-party 1 applied for the registration of transfer of the title to the third real estate of this case without submitting a registration certificate, a power of attorney authenticated, or a document of confirmation by a certified judicial scrivener, the registration of transfer of title to the third real estate of this case was completed in the non-party 1 without verifying whether the registration officer is equipped with necessary documents. The plaintiff believed that the above registration of transfer of title to the third real estate of this case is true and incurred losses by establishing the right to collateral security on the third real estate of this case and lending money to the non-party 1, the defendant is liable to compensate the plaintiff for the damages caused by the negligence in the course

According to the statement No. 5-1 and No. 2 of this case, it can be recognized that the document attached to the application submitted by Nonparty 1 while applying for the registration of transfer of ownership with respect to the third real estate of this case only contains the "donation contract, registration tax receipt certificate and notice, land cadastre, certificate of personal seal impression, resident registration, etc.", and the certificate of completion of registration is not stated. However, according to the above facts of recognition, it is possible for Nonparty 1 to attach the certificate of completion of registration when applying for the registration of transfer of ownership with respect to the third real estate of this case, while the above facts of recognition alone are likely to attach the certificate of completion of registration when Nonparty 1 applied for the registration of transfer of ownership with respect to the third real estate of this case, although Nonparty 1 did not submit the certificate of completion of registration or the certificate of delegation or the certificate of confirmation by an attorney-at-law, or a certified judicial scrivener, it is not sufficient to admit that the registration officer was required and there is no other evidence to prove that there was negligence by the plaintiff.

B. Scope of liability for damages

(1) Criteria for calculating damages

The ordinary damages suffered by the mortgagee due to the cancellation of the registration of creation of a neighboring mortgage after the loan of money by the trust in the registration of creation of a title in an invalid debtor's name shall be equivalent to the amount loaned to the debtor within the scope of the maximum debt amount within the scope of the value of the above real estate, which is the object of a collateral security, within the scope of the value of the above real estate, which is the object of a collateral security. The value of the above real estate shall be determined at the time when the execution of the collateral security would have been expected if the collateral security was effective or at the time of closing of argument in the lawsuit of claim for damages (see Supreme Court Decision 98Da27623, Apr. 9, 199).

Meanwhile, in cases where several real estate are offered as joint collateral, even if one of them has a right to preferential reimbursement within the maximum amount of the secured claims out of the proceeds when a security right is exercised first, in proportion to the maximum amount of the secured claims, the secured claims shall be borne respectively in proportion to the price of the real estate held as joint collateral. Thus, the calculation of the value of the secured claims on the real estate held as joint collateral shall be based on the ratio of the price of the real estate held as joint collateral (see Supreme Court Decision 2009Do10541, Jan. 13, 201).

Furthermore, property damage caused by a tort refers to the difference between the property disadvantage caused by an illegal harmful act, i.e., the property condition that would have existed without the illegal act and the current property condition that caused the illegal act (see Supreme Court Decision 96Da25807, 25814, Sept. 20, 196). The plaintiff loaned the 1 and 3 real estate as joint collateral, but the security itself becomes invalid from the beginning, while the part where the defendant's liability for damages is recognized is limited to the 1 real estate of this case. Thus, in calculating the amount of damages suffered by the plaintiff due to the defendant's illegal act as to the 1 real estate of this case, it is reasonable to assess the amount of the 3 real estate of this case on the premise that the 1 and 3 real estate of this case was effectively acquired, on the condition that the 1 and 13 real estate of this case were jointly offered as joint collateral, it is difficult to separately calculate the amount of the loan by each real estate of this case, as seen earlier, within the market value of each real estate of this case.

(2) Damages on the instant 1 real estate

On the other hand, according to Gap evidence No. 10-1, the market price of the third real estate of this case at the time of the above lease is 172,429,800 won and the market price of the third real estate of this case was 48,800,000 won as of April 5, 2012, the market price of the first and third real estate of this case is 22,70,000 won and the market price of the third real estate of this case is 172,429,80 won, and the third real estate of this case was 48,000 won, and there is no evidence to verify the market price of the first and third real estate of this case as of April 5, 2012 (the plaintiff is 2,80,000 won and the recent market price of the first and third real estate of this case is 40,000 won and 15,000 won, and there is no change in the market price of the first and third real estate of this case No. 15.15.

Based on the above facts of recognition, the security value for the secured claim of the first real estate of this case, which has been jointly secured, is 162,118,297 won [=208,00,000 won x 172,429,800 won (the maximum amount of bonds) ± 221,229,800 won (total market value of the first real estate of this case) ± (the total market value of the first and second real estate of this case). The amount of 160,00,000 won for the first and third real estate of this case is 124,706,382 won (=160,000,000 won) 】 172,429,800 won ± 221,229,800 won ± 229,800 won (the total market value of the first and second real estate of this case). Thus, the amount of damages of the Defendant’s real estate of this case is 12716.

(3) Damages on the second real estate of this case

The Plaintiff established the first priority collective security (the highest claim amounting to KRW 78 million) with respect to the second real estate of this case to Nonparty 1 and lent KRW 60 million to Nonparty 1 as seen in the above basic facts. Meanwhile, according to the evidence No. 10-2, the market price of the second real estate of this case at the time of the above lease can be recognized as having been KRW 374.5 million. Since there is no evidence to verify the market price as of April 5, 2012, which is the date of the closing of the trial of the first instance, the market price of the second real estate of this case as of April 5, 2012, the market price of the second real estate of this case as of April 5, 2012, which is the date of the closing of the trial of the first instance, shall be deemed to have been KRW 374.5 million.

Based on the above facts of recognition, the Plaintiff’s damages arising from the Defendant’s tort regarding the instant 2 real estate are KRW 60 million, which is equivalent to KRW 78 million, within the maximum maximum debt amount of KRW 78 million, which is the value of the instant 2 real estate, to the extent of KRW 374.5 million.

(4) The theory of lawsuit

Therefore, with respect to the Plaintiff KRW 184,706,382 ( KRW 124,706,382 + KRW 60,000) and KRW 124,706,382 among the above loans, the Defendant is obligated to pay damages for delay calculated at each rate of KRW 20% per annum as provided by the Civil Act from January 30, 201, which is the date of the first instance judgment, which is the date of the decision of the court of first instance, where it is deemed reasonable for each Defendant to dispute the existence and scope of the obligation after the above loan date, with respect to KRW 60,00,000,00 that the Plaintiff seeks from January 22, 2010, and from January 30, 201, which is the date of the decision of the court of first instance, to October 14, 201, which is the date of full payment.

In this regard, the plaintiff asserts that in calculating the amount of damages, the interest calculated by the agreed interest rate as well as the agreed interest rate and the delayed interest rate fall under the scope of ordinary damages, or even if the special damages were to be known or known to the defendant, the defendant is obligated to pay damages for delay calculated based on the agreed interest rate of 22% per annum from the day following the calculation of the amount of damages calculated based on the agreed interest rate to the day of full payment. However, in this case where liability for tort damages occurred due to a secured loan with trust in null and void registration of transfer of ownership is at issue, the ordinary damages are the basis for the principal of the loan except the agreed interest and agreed interest, and there is no evidence to support that the plaintiff knew or could have known that the agreed interest would have accrued, and damages for delay due to tort are subject to statutory interest rate under the Civil Act. Therefore, the above assertion is without merit.

3. Conclusion

Therefore, the plaintiff's claim is justified within the above scope of recognition, and the remaining claims are dismissed as it is without merit. The judgment of the court of first instance is just in this conclusion, and the plaintiff and the defendant's appeal are dismissed as it is without merit. It is so decided as per Disposition.

Judges Yellowified (Presiding Judge) Lee Jin-young