2013Da59630 Loans, etc.

2013Da59647 (Consolidated Loans)

A

1. B

2. C.

3. D;

4. E.

Seoul Central District Court Decision 2013Na16946, 16953 (Consolidated) Decided July 19, 2013

Judgment

March 10, 2016

The part of the judgment below against the Defendants is reversed, and that part of the case is remanded to the Panel Division of the Seoul Central District Court.

The grounds of appeal are examined.

1. The lower court recognized the Plaintiff’s loan of KRW 67 million from February 2, 2008 to August 13, 2009, based on the evidence Nos. 1 and evidence Nos. 2-1 to 7 (each promissory note or receipt), and further, rejected the Defendants’ assertion that the Plaintiff arbitrarily affixed the net F’s seal in the issuer column of evidence No. 3 (a Promissory Notes; hereinafter “the Promissory Notes”), and determined that the Promissory Notes of this case is presumed to be the authenticity of the entire document due to the lack of dispute in the net F’s seal image portion, and that the Promissory Notes of this case and the lower court issued and delivered the Promissory Notes of this case to the Plaintiff, a joint and several surety of Defendant E, the Plaintiff, based on the testimony, etc. by the witness J.

2. However, the lower court’s determination is difficult to accept for the following reasons.

A. If, barring any special circumstance, the authenticity of a nominal holder’s seal imprinted on a private document is presumed to have been made, barring any special circumstance, if the authenticity of the seal imprinted by his/her seal imprinted, the authenticity of the document is presumed to have been made pursuant to Article 358 of the Civil Procedure Act. On the other hand, if the authenticity of the seal imprinted is presumed to have been made, the authenticity of the document is presumed to have been made pursuant to Article 358 of the Civil Procedure Act. In other words, the presumption that the act of signing and sealing is attributable to the intent of the nominal holder. As such, if the person disputing the authenticity of the seal imprinted proves circumstances that the act of affixing and sealing is attributable to the intent of the nominal holder, the presumption of the authenticity of the seal imprinted is broken if the court proves that the act of affixing and sealing pursuant to the intention of the nominal holder

In addition, inasmuch as the authenticity of a disposal document is recognized, insofar as there is no clear and acceptable evidence that denies the content of the document, the existence and content of the declaration of intent pursuant to the content of the document should be recognized, and the authenticity of the disposal document should be determined prudently in consideration of such fact (see, e.g., Supreme Court Decision 2012Da94728, Aug. 22, 2013).

B. The record reveals the following circumstances.

(1) In the instant lawsuit, the Plaintiff alleged that, at the first time, Defendant E loaned money from the Plaintiff, Defendant E believed it to the effect that the net F would not have affixed a seal on the instant promissory note, and that at that time, Defendant E did not submit the network F’s personal seal impression, etc., it would be apparent that Defendant E received the network F’s personal seal impression from the networkF around July 2009. However, on September 17, 2008, the Plaintiff asserted that the networkF would have obtained the networkF’s personal seal impression. However, on the other hand, it was found in the Plaintiff’s corporate office on September 17, 2008, that the net F would no longer be responsible, and that it would have lent money to Defendant E as it was the last day, and that it would have affixed a direct seal impression on the instant promissory note, and changed its assertion.

(2) As alleged by the Plaintiff, if the net F is no longer responsible for the Defendant E’s obligation on September 17, 2008, and it is directly sealed and sealed on the Promissory Notes in this case as the last day, the name of “F” shall be stated in the column of the issuer, and in particular, it shall be deemed that Defendant E intended to clarify such intention and the amount of obligation up to that time by directly stating the face value of the Promissory Notes in the face value of KRW 67 million. Nevertheless, there is no particular dispute between the parties as to the fact that Defendant E entered the name of “F” in the issuer column of the Promissory Notes in this case, and that the face value was set back later by the Plaintiff.

In addition, the plaintiff's above assertion is difficult to believe, considering that Defendant E borrowed money from H with the plaintiff's introduction and affixed a seal of the networkF's seal impression on December 12, 2008 (Evidence A No. 13).

(3) If the netF puts his seal on the Promissory Notes in the sense that it actually and severally guaranteed Defendant E’s obligation on September 17, 2008, the certificate of personal seal impression will also have been issued and affixed. However, the Plaintiff’s submission of the Promissory Notes as a certificate of personal seal impression attached to the Promissory Notes is a certificate of personal seal impression issued on July 22, 2009.

(4) Meanwhile, in the court below’s decision, around September 2008, J, an employee of the Plaintiff, signed the network F with Defendant E as “F directly on the instant promissory note,” and signed the Plaintiff’s office, and testified to the effect that the word “F” was written by Defendant E, and that the network F has been holding a certificate of seal impression at the time. However, Defendant E stated the name of “F” on the instant promissory note, and the name of “F” was not written at the time of the preparation of the instant promissory note, and the name of “F million won” was not written, and the network F’s certificate of seal impression was kept by Defendant E around July 2009. In light of the circumstances where the principal contents of the J’s testimony are not disputed, it is difficult to view that the Plaintiff’s testimony was made in accordance with the legal principles as to the instant promissory note, and thus, it is difficult to see that the Plaintiff’s testimony was made on September 208, 2008.

D. Meanwhile, the lower court recognized the fact that the Plaintiff lent KRW 67 million to Defendant E on the grounds of the evidence No. 1 and the evidence No. 2-1 through No. 7, and recognized the fact that the Plaintiff lent KRW 67 million to Defendant E, and the evidence No. 1 stated only the personal information and interest rate of KRW 5,000,000, but also did not state the loan amount, date of lease, maturity, etc., and the evidence No. 2-1 through No. 7 stated only the amount, and the issue date, etc. is either the name of Defendant E or the promissory note and the receipt jointly signed by Defendant E and Defendant E and netF, and is identical with the face value of the Promissory Notes.

On September 17, 2008, the Plaintiff lent a total of KRW 67 million to Defendant E several occasions. The Plaintiff, along with Defendant E, issued the certificate of No. 2 No. 1 through No. 7 in lieu of the loan certificate, to the Plaintiff as a joint and several surety, and on September 17, 2008, the Plaintiff alleged that the Plaintiff issued the Promissory Notes in this case with the total face value of KRW 67 million. The Defendants are arguing that Defendant E loaned a total of KRW 20 million from the Plaintiff, and there is a debt of KRW 15 million at present, and some of the Promissory Notes and the evidence No. 2 were issued with respect to G’s loan, which is the secured debt of the cancelled collateral, rather than the Plaintiff’s loan.

In light of the circumstances, the credibility of the Plaintiff’s assertion as to the process of the issuance of the Promissory Notes or the authenticity of the Promissory Notes and whether the authenticity of the Promissory Notes is recognized are closely related to the determination of the evidence set forth in No. 2-1 through No. 7. Therefore, the issuance of the Promissory Notes as seen earlier.

In light of the following circumstances: (a) it is difficult to believe the Plaintiff’s assertion as to the developments, etc.; (b) there is a doubt that the presumption of the authenticity of the networkF’s seal pursuant to the Promissory Notes of this case has been broken out; (c) there is no statement of the issue date in the evidence No. 2-1 through No. 7 of this case; and (d) there is no financial data corresponding thereto; and (e) Defendant E does not enter the claims for the Promissory Notes in the list of individual rehabilitation creditors in the list of individual rehabilitation creditors and only stated only the list of individual rehabilitation creditors transferred in the Plaintiff’s name under the name of M, who is a parent of the Plaintiff, in the list of individual rehabilitation creditors; and (d) it is difficult to readily conclude that the Plaintiff lent KRW 67 million in total to Defendant E solely based on the statement No. 2-1 through No. 7 of the evidence No. 2-1 that the Plaintiff could have a monetary loan relationship between the Plaintiff and the Defendant E; and (c) the loan does not amount to KRW 67 million.

E. Nevertheless, the court below acknowledged the fact that the Plaintiff lent KRW 67 million to Defendant E on the grounds of evidence Nos. 1 and evidence Nos. 2-1 through 7, etc., and judged that the Promissory Notes of this case are not disputed in the net F’s seal image and thus the authenticity of the entire document is presumed presumed to have been established. Thus, the court below erred by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, and by misapprehending the legal principles on the authenticity of private documents, thereby affecting the conclusion of the judgment. The allegation in the grounds of appeal assigning this error is with merit.

3. Therefore, without examining the remaining grounds of appeal, the part of the judgment below against the Defendants is reversed, and that part of 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 Kim Jae-young

Justices Lee In-bok, Counsel for the appeal

Justices Lee Dong-won