[1] In a case where a certified judicial scrivener’s compliance with the instructions of the client is not suitable for the purpose of delegation or rather disadvantageously unfavorable to the client, the contents of the duty to explain and advise the client

[2] The case holding that where a certified judicial scrivener entrusted registration of establishment of a large scale of neighboring mortgage, and a certified judicial scrivener entrusted with registration of establishment of a right to lease on a deposit basis of change of the duration of the right to lease on a deposit basis, etc. from a person having a right to lease on a deposit basis, did not explain and advise the person having a right to lease on a deposit basis, and completed registration of establishment of a right to lease on a deposit basis of the right to lease on a deposit basis of the right to lease on a deposit basis, and completed registration of establishment of a new right to lease on a deposit basis in

[1] A certified judicial scrivener is a person with professional knowledge about registration affairs and delegated by the general public to a certified judicial scrivener based on the expectation and trust of the certified judicial scrivener, who is such an expert. Thus, even if the principal duties of a certified judicial scrivener related to registration affairs are prepared and represented by documents, if it is not compatible with the purpose of delegation or it is revealed that complying with the instructions of the client would result in disadvantageous consequences to the client in the course of performing such duties, he/she is obliged to inform the client of such matters within the scope related to the performance of duties as prescribed by the Certified Judicial Scriveners Act, to confirm the client’s genuine intent, and to explain or advise the client so that the client’s genuine intent is appropriate by appropriate means.

[2] Where a certified judicial scrivener requested registration of establishment of a large scale of neighboring mortgage, and a certified judicial scrivener requested registration of establishment of a lease on a deposit basis for change of the duration of the right of lease on a deposit basis, etc. from a person having a right of lease on a deposit basis, did not explain and advise the person having a right of lease on a deposit basis, and completed registration of establishment of a neighboring mortgage, cancellation of the right of lease on a deposit basis, and new right of lease on a deposit basis under the name of a person having a right of lease on a deposit basis, the case holding that the person liable for damages against the

[1] Article 681 of the Civil Code and Article 2 of the Certified Judicial Scriveners Act / [2] Article 681 of the Civil Code, Articles 2 and 26 (1) of the Certified Judicial Scriveners Act

[1] Supreme Court Decision 2000Da39629 decided Feb. 27, 2001 (Gong2001Sang, 772) Supreme Court Decision 2000Da61671 decided Jan. 10, 2003 (Gong2003Sang, 585)

Sucho-si (Law Firm Jin Law, Attorneys Im Im-soo et al., Counsel for the defendant-appellant)

Defendant

Seoul High Court Decision 2003Na72315 delivered on September 8, 2004

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. As to the assertion of mistake of facts against the rules of evidence

In light of the records, the court below is justified in rejecting the defendant's assertion that the plaintiff and the non-party 1 agree to the order of priority over the plaintiff's right of lease on the ground that the plaintiff and the non-party 2's testimony, who are the defendant's employees, are hard to believe and there is no other evidence to support the defendant's argument, after compiling the evidence adopted in the judgment and finding facts as stated in the judgment, and considering these facts, the court below's finding that the non-party 1's statement and the non-party 2's testimony, who are part of the defendant's employees, are the defendant's employees, or there is a reasonable ground to believe that the plaintiff

2. As to the assertion of misapprehension of legal principles concerning the duty of a certified judicial scrivener

A. A certified judicial scrivener is a person with professional knowledge about registration affairs and delegates such affairs to a certified judicial scrivener based on the expectation and trust of a certified judicial scrivener, who is such an expert. Thus, even if the principal duties of a certified judicial scrivener related to registration affairs are prepared and represented by a document, if it is not appropriate to the purport of delegation or it is revealed that complying with the client’s instructions in the process of performing such duties would result in disadvantageous consequences to clients, the certified judicial scrivener is obligated to inform the client of such details within the scope related to the performance of duties as prescribed by the Certified Judicial Scriveners Act, to confirm the client’s genuine intent, and to explain or advise the client in an appropriate manner so that the client’s genuine intent is appropriate.

B. Reviewing the record in the instant case, after the Plaintiff requested the Defendant on November 1, 1995 to register the establishment of the right to lease on a deposit basis with the first priority of 100 million won and 2 years of the duration of the instant building (hereinafter “the first right to lease on a deposit basis”). On November 1997, the Plaintiff agreed with the owner to increase the deposit amount of 5 million won and extend the duration of the first right to lease on a deposit basis for 2 years, and again requested the Defendant to register the first right to lease on a deposit basis without any explanation or advice on the loss of priority to the first right to lease on a deposit basis (hereinafter “the second right to lease on a deposit basis”) and registered the first right to lease on a deposit basis with the Defendant, the Defendant did not first right to lease on a deposit basis with the owner of the first right to lease on a deposit basis of the first right to lease on a deposit basis with the owner of the first right to lease on a deposit basis of 300 million won to Nonparty 1 and the first right to lease on a deposit basis (hereinafter “the second right to lease”).

C. However, according to the above facts, the defendant, a certified judicial scrivener, is well aware that the largest reason for the registration of the establishment of chonsegwon is to secure the claim for the return of the lease on a deposit basis. According to the above facts, the first lease on a deposit basis was the best order of the plaintiff. If the plaintiff registers the establishment of a new lease on a deposit basis with partial change in the term of the lease on a deposit basis as requested by the plaintiff, the plaintiff would have a fatal disadvantage by subtracting the right of priority from the next priority mortgagee. Therefore, if the existing lease on a deposit basis directly bears such disadvantage, it would be very unusual that the registration of the existing lease on a deposit basis would be made by the above method, rather than taking such a method, if ordinary clients, it would be easily expected that the registration of the existing lease on a deposit basis is a withdrawal method of maintaining the priority of the existing lease on a deposit basis at least by keeping the existing registration of the lease on a deposit basis on a deposit basis with a third lease on a deposit basis as well as that the defendant already accepted the registration of the third lease on a deposit basis.

D. Therefore, the court below is just in holding the defendant liable for violation of the duty of explanation and advice as a certified judicial scrivener in the same purport, and there is no error in the misapprehension of the legal principles as to the duty of care of a certified judicial scrivener, as alleged in the ground of appeal.

3. As to the assertion of violation of the principle of fairness

The fact-finding or determination of the rate of comparative negligence in a damage compensation case due to nonperformance or tort falls under the exclusive authority of a fact-finding court unless it is deemed remarkably unreasonable in light of the principle of equity. In light of all the circumstances indicated in the records and the judgment of the court below, the court below's determination of 50% of the plaintiff's negligence as 50% of the losses due to failure to promptly verify a certified copy of the register of the court below shall be justified in light of the principle of equity. Thus, the allegation in the grounds of appeal in this

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)