Korea Mutual Savings Bank (General Law Firm, Attorney Yoon Young-young, Counsel for the defendant-appellant)

An intervenor;

Guro-gu Seoul Metropolitan Government (Law Firm Sejong, Attorneys Park Sung-won, Counsel for the plaintiff-appellant)

June 7, 2006

Seoul Central District Court Decision 2004Gahap57637 Decided December 15, 2005

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

2. The plaintiff's appeal is dismissed.

3. The total costs of the lawsuit shall be borne by the plaintiff.

1. Purport of claim

The defendant shall pay to the plaintiff 283,463,014 won with 5% interest per annum from June 25, 2004 to the service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

Of the judgment of the court of first instance, the part against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 199,061,970 won with 5% per annum from June 25, 2004 to the service date of a copy of the complaint of this case, and 20% per annum from the next day to the day of complete payment.

Defendant: as set forth in paragraph (1).

1. Basic facts

A. Status of the parties

The plaintiff is a corporation that carries on financial business, and the defendant is a local government responsible for issuing a certificate of the personal seal impression. The non-party 3 misrepresented the non-party 2 and provided the non-party 654 Hyundai Apartment-dong, Gangnam-gu, Seoul (hereinafter referred to as "the real estate of this case") as security and acquired the loan from the plaintiff, and the plaintiff's assistant is a certified judicial scrivener.

(b) Issuing certificates of seal imprint;

On June 16, 2004, the non-party 1, who is in charge of the issuance of a certificate of seal impression at the fourth Dong office belonging to the defendant, received a request from the non-party 2 who assumes the identity of the non-party 2 (the non-party 3 or the non-party 2 did not apply according to the result of the non-party 2's unmanned appraisal at the court of first instance) and confirmed his identity with his identification card (it is not clear which identification was confirmed with his identification card, among the resident registration certificate, the driver's license, the certificate of disabled person, or passport, etc.) and affixed his identification card to the certificate of seal impression issuance register, and then confirmed the identity of the non-party 2, who was placed on the above unmanned and computer screen, and issued the certificate of seal impression in the non-party 2's name.

C. The reason why Nonparty 3 acquired the loan by fraud

(1) On June 23, 2004, Nonparty 3 forged Nonparty 2’s resident registration certificate (the resident registration certificate in Nonparty 2’s name) and seal imprint, and submitted Nonparty 2’s resident registration certificate, personal seal certificate, and the above certificate of personal seal issued by Nonparty 1, who forged the Plaintiff’s employee to Nonparty 2 and forged the Plaintiff’s employee, and applied for loans secured by the instant real estate.

(2) 당시 소외 3이 원고의 대출담당 직원에게 제시한 소외 2의 주민등록증은 진정한 주민등록증과는 달리 앞면에 ‘주민등록증’이라고 기재된 부분 중 ‘민’자가 ‘ㅁ’의 왼쪽 세로획 ‘ㅣ’와 아래 가로획 ‘ㅡ’이 맞닿는 형태로 되어 있고, 뒷면 주소변경란과 일자확인란 사이의 세로획이 제일 밑줄 가로획과 맞닿는 형태로 되어 있었으며, 그 뒷면 하단의 “※이 증을 습득하신 분은 우체통에 넣어주십시”까지의 글자체가 명조체로 이루어져 있었다.

(3) When Nonparty 3 lost the Plaintiff’s certificate of registration of this case’s real estate to the employee in charge of loan, the employee in charge of the Plaintiff’s loan requested the Plaintiff’s assistant participant who was making a transaction with the Plaintiff to prepare a confirmation document under Article 49(3) of the Registration of Real Estate Act. Nonparty 4, the employee of the Plaintiff’s assistant participant, confirmed Nonparty 3’s photograph and face attached to Nonparty 3’s resident registration certificate submitted by Nonparty 3 as the land, and verified his identity by comparing the certificate of personal seal impression. Nonparty 4, the Plaintiff’s assistant intervenor confirmed that “the Plaintiff’s assistant participant confirmed the resident registration certificate with the resident registration certificate and confirmed that Nonparty 2 was the person liable for registration.” The Plaintiff’s employee in charge of loan confirmed that there was no lessee by inspecting the status quo and lease by Nonparty 2’s resident registration card in lieu of on-site verification.

(4) On the 24th of the same month, the Plaintiff’s employees in charge of the loan completed the registration of establishment of a right to collateral security of KRW 390,00,000 with respect to the real estate of this case in trust with Nonparty 3 as Nonparty 2 himself, and paid KRW 281,336,814 to Nonparty 3 on the 25th of the same month after deducting the stamp, etc. from KRW 300,00,000,000 for the loan. On the same day, the Plaintiff paid KRW 281,336,814 to Nonparty 3 at the first bank branch of

(d) Cancellation of registration of establishment of collateral security;

On July 5, 2004, upon receipt of the notice from the registry office on the completion of the registration of the establishment of the right to collateral security with respect to the instant real estate, Nonparty 2 set forth an objection against the Plaintiff and demanded the cancellation of the registration of the establishment of the right to collateral security with respect to the instant real estate. Accordingly, the Plaintiff confirmed that Nonparty 2 did not have obtained a loan with respect to the instant real estate, and revoked the registration of the establishment of the right to collateral security with respect

E. Meanwhile, the Plaintiff filed a complaint against Nonparty 2 and Nonparty 3 on the grounds of forging official document, uttering of forged official document, fraud, etc. The Seoul Central District Prosecutors' Office dismissed Nonparty 2 on September 21, 2004, and suspended indictment against Nonparty 3 on the grounds of unknown whereabouts.

[Evidence] The purport of the whole pleadings by the court of first instance, as follows: Gap evidence 1-1, 2, and 3-1 through 3, 4, 6, 7, 8-1, 2, 9, 10-1 through 6, 12, 13, 14-1, 23, 25-1 through 6, 25-28, Eul evidence 1, 6, 7, 10-1, 12-1, 12-1, 2-2, 14-1, 14-2, 23, 25-1 through 6, 28, 25-2, 1, 7, 10-1, 12-1, 2-1, 12-2, the testimony of the non-party witness of the court of first instance, and the purport of the whole pleadings

2. The plaintiff's claim and judgment

A. The plaintiff's assertion

(1) A certificate of seal imprint is a material confirming the identity of a trader and the identity of a trader as well as that of a trader’s intent, and is extremely important in the transaction of the general public. As such, a public official handling the certificate of seal imprint has a duty to prevent unlawful acts arising from a certificate of seal imprint issued in expectation that it is used on a work related to rights and obligations with others.

(2) However, Nonparty 1, who is a public official in charge of issuing a certificate of seal imprint, was negligent in issuing a certificate of seal imprint with Nonparty 2 to a person who assumes the false name of Nonparty 2 without complying with the procedure for identification even though he/she could have easily known that Nonparty 2 was the person who assumes the false name by comparing Nonparty 2’s photographs and fingerprints with Nonparty 2.

(3) As above, the Plaintiff lent the real estate to Nonparty 3, who believed that Nonparty 1’s certificate of personal seal impression issued by Nonparty 1’s negligence was properly issued by Nonparty 2 himself and misrepresented Nonparty 2 as collateral. However, upon cancelling the registration of establishment of a collateral security right on the real estate of this case, the Plaintiff suffered considerable damage to the loan. There is a proximate causal link between Nonparty 1’s breach of duty of care and the Plaintiff’s loss.

(4) Therefore, pursuant to Articles 2(1) and 6(1) of the State Compensation Act, the Defendant is liable to compensate for damages sustained by the Plaintiff due to the tort committed by Nonparty 1, who is a public official belonging to the Defendant.

B. Determination

(1) Whether Nonparty 1 was negligent in issuing a certificate of personal seal impression

If a person asserts that he/she is the applicant who has reported his/her seal imprint applies for the issuance of a certificate of seal imprint, a public official handling affairs of a certificate of seal imprint shall be presumed to have a duty to issue a certificate of seal imprint only when he/she confirms whether his/her resident registration certificate, etc. presented by the applicant is forged or altered externally or his/her personal information is consistent with that of his/her resident registration certificate, etc. as prescribed by Article 13(5) of the Enforcement Decree of the Certification of Seal Imprint Act, and his/her confirmation that the applicant is the applicant himself/herself is true. If a person who actually applied for the issuance of a certificate of seal imprint is found to be another person after he/she is the applicant himself/herself, unless there are special circumstances, such as where a local government takes exclusive charge of handling affairs of a certificate of seal imprint and all relevant materials are found to have been negligent

According to the above facts, since non-party 1, who is a public official in charge of affairs related to the certification of seal imprint, issued the non-party 2's certificate to the non-party 2 who assumes the false name of the non-party 2, it is presumed that the non-party 1 was negligent in issuing the certificate of seal imprint, and the non-party 1's testimony is insufficient to reverse the presumption

(2) Whether there exists a causal relationship between the negligence of Nonparty 1 and the Plaintiff’s act of lending money

(A) Amendment of the Certification of Seal Imprint Act

According to Articles 1, 12(1) of the former Certification of Seal Imprint Act (amended by Act No. 6667 of Mar. 25, 2002) and Articles 13(1), 13(3), and 7(2) of the former Enforcement Decree of the Certification of Seal Imprint Act (amended by Presidential Decree No. 17867 of Dec. 31, 2002), if a public official or his/her agent has visited his/her domicile, Eup, Myeon, and Dong office with his/her seal imprint affixed his/her seal imprint and submitted it to the public official in charge of issuance of the certificate of seal imprint, he/she shall prove that the seal imprint affixed on the certificate of seal imprint and the reported seal imprint are identical with the seal imprint affixed on the certificate of seal imprint as its face (in such cases, an applicant for issuance shall submit not only an identification card but also a certificate of seal imprint).

However, according to Articles 1 and 12(1) of the Certification of Seal Imprint Act and Article 13(1) and (4) of the Enforcement Decree of the Certification of Seal Imprint Act, which was amended on March 25, 2002 and enforced on March 26, 2003, if a person or his/her agent visits all Eup/Myeon/Dong offices across the country to present resident registration certificates, etc. (resident registration certificates, automobile driver's license, disabled person registration certificates, or passport) and files an application for a certificate of seal imprint, the public official in charge of issuing the certificate of seal imprint has confirmed whether he/she or his/her agent is the person or his/her agent by using a special paper to prevent reproduction of the certificate of seal imprinted and printed out on a computer (in this case, the applicant needs to present his/her identification card, but the certificate of seal imprint is not necessary).

(B) Change in the function of a certificate of seal imprint due to the amendment of the Certification of Seal Imprint Act

At the time when the former Certification Act enters into force, a public official in charge of issuing a certificate of seal imprint was using a direct method of issuing a certificate of seal imprint when the applicant’s seal imprint submitted with the seal imprint affixed on the certificate form and the registered certificate of seal imprint affixed with the seal imprint affixed with the seal imprint affixed thereon, and thus, the certificate of seal imprint used a direct method of issuing the certificate of seal imprint. As such, the certificate of seal imprint used a direct method of proving the identity of the trader itself and the identity of the trader and the transaction with the intent of the actor (see Supreme Court Decision 93Da50185

However, the current Act on the Certification of Seal Imprints a method of indirect certification and it is limited to a public official in charge of issuing a certificate of seal imprint to notarized a copy of the previous type of seal imprint instead of conducting a previous type of seal imprint, and a user has to voluntarily hold a certificate of seal imprint at the stage of using a certificate of seal imprint. As such, the certificate of seal imprint only proves the identity of the certificate itself, and there is no function of proving that the identity and transaction of the trader is caused by the intent of the actor (the entry in the certificate of seal imprint is referred to as “a certificate that the above seal imprint is reported”).

In addition, Article 13(1) of the Enforcement Decree of the Certification of Seal Imprint Act provides that “When a person intends to obtain a certificate of seal imprint, he or his agent shall file an application with an authority to issue the certificate of seal imprint,” Paragraph (2) of the same Article provides that “where a person applies for the issuance of the certificate of seal imprint, he or she shall submit a proxy’s resident registration certificate, etc. along with the power of attorney,” and Paragraph (4) of the same Article provides that “the authority to issue the certificate of seal imprint, upon receipt of an application for the issuance of the certificate of seal imprint, shall issue the certificate using a special paper to prevent duplication, and shall issue the certificate after receipt of the recipient’s signature, seal or signature or seal affixed by the certificate of seal imprint register.” Thus, if a representative applies for the issuance of the certificate of

Therefore, under the current Certification of Seal Imprint Act, it is difficult to presume that a person has a certificate of seal impression alone, and as a result, a person who intends to make a transaction using a certificate of seal imprints the other party's own responsibility and the other party's personal seal impression on his/her own responsibility, and confirms his/her identity by means of identification documents such as resident registration certificates or related persons.

(C) Determination

In this case, the non-party 3 submitted a forged resident registration certificate, a certificate of seal impression and a certificate of seal impression issued by the non-party 1 to the plaintiff at the time of the loan application. The plaintiff can only confirm whether the applicant is the non-party 2 himself/herself or not, and whether the loan application is due to his/her will or not, in addition to the certificate of seal impression, it should have confirmed his/her own responsibility by conducting a written inspection, such as resident registration certificate, registration documents, etc., and an on-site inspection and an interview with the relevant person, if necessary (if the non-party 3 did not have a right to registration, and the non-party 3 had a defect in the form as mentioned above, if he/she exercised due to his/her resident registration certificate, it can be sufficiently discovered that the resident registration certificate was forged). The plaintiff believed that the loan was conducted with the trust of only the certificate of

Therefore, insofar as Nonparty 2’s certificate of seal impression alone does not prove that the above applicant is Nonparty 2, it cannot be deemed that there is a legal proximate causal relationship between the illegal issuance of the certificate of seal impression due to the negligence of the public official in charge of issuing the certificate of seal impression and the Plaintiff’s loan in this case. Therefore, the Plaintiff’s assertion has no reason (in reality of transaction, it is true that the certificate of seal impression still proves the identity of the trader and is used as materials to confirm the identity of the trader, but as long as the legal function has been clearly changed, it cannot be acknowledged that there is a legal proximate causal relationship between the wrongful issuance of

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit. Since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted, and the part against the defendant in the judgment of the court of first instance is revoked, and the plaintiff's claim corresponding to the revoked part and the plaintiff's appeal is dismissed. It

Judges Yoon Jae-ap (Presiding Justice) (Presiding Justice)