Plaintiff (Law Firm Gwangju, Attorney Lee Jong-soo et al., Counsel for plaintiff-appellant)

Gyeonggi-nam Fisheries Cooperatives (Law Firm Volcan, Attorneys Lee Jae-coo et al., Counsel for the defendant-appellant)

November 18, 2016

Suwon District Court Decision 2014Ra4700 Decided November 24, 2015

1. The plaintiff's appeal is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The judgment of the first instance is revoked. The defendant will implement the registration procedure for cancellation of the registration of the establishment of a neighboring housing site, which was completed on May 18, 2012 by Suwon District Court No. 26013, the registration of the establishment of a neighboring housing site, which was completed on May 18, 2012, and the registration of the establishment of a neighboring housing site, which was completed on December 31, 2012 by No. 7019, which was completed on December 31, 2012.

1. Basic facts

The reasoning for this Court’s explanation is as follows: (a) No. 8 of “A” based on the recognition of No. 4, No. 12 of the judgment of the court of first instance; and (b) the part of “1. Basic Facts” based on the reasoning of the judgment of the court of first instance, except for the parts used after adding to “A” based on the recognition of No. 4, No. 12 of the judgment of the court of first instance.

○ Parts of Cuts

Of the reasons for the judgment of the court of first instance, the parts of the 4th to 11th shall be cut to the following:

[2] On August 31, 2015, Nonparty 2, and Nonparty 1 conspired to make a registration of creation of the title of the Plaintiff by forging and using a loan transaction agreement, a mortgage contract, etc. under the name of the Plaintiff, and by using the document to make a mortgage contract, etc., and subsequently, they were indicted for the following facts: (a) the registration of creation of the title of the instant No. 1 was completed; and (b) the registration of creation of a title of the instant No. 230,000,000 won borrowed as security was obtained; and (c) the judgment was rendered guilty in Suwon District Court Decision 2015No7383, Dec. 28, 2015 (2014No724). Accordingly, Nonparty 2 appealed appealed each of the appeals to Suwon District Court 2015No7383

2. The parties' assertion

A. The plaintiff's assertion

(i)the primary features;

A) The registration of the establishment of a neighboring to the first place of the instant case is null and void, since Nonparty 1 and Nonparty 2 conspired with each other, steals the Plaintiff’s seal imprint certificate and forged the relevant documents, and thus, should be cancelled.

B) The establishment registration of the creation of the second collateral was established to repay the interest on the secured debt of the first collateral mortgage of this case, and as long as the secured debt of the first collateral mortgage of this case does not exist due to the invalidity of the cause of the establishment registration of the first collateral mortgage of this case, the secured debt of the first collateral mortgage of this case shall be revoked

(ii) preliminary;

Nonparty 2, an employee of the Defendant, forged a loan transaction agreement and a mortgage transaction agreement using the Plaintiff’s seal imprint, resident registration certificate, and a certificate of personal seal impression, thereby causing damage equivalent to the maximum debt amount of KRW 322,00,000 to the Plaintiff on purpose. The Defendant, as an employer of Nonparty 2, is liable to the Plaintiff for the tort of Nonparty 2.

Therefore, since there is no secured debt of the registration of the establishment of the first place of the instant case corresponding to the amount of damages, the registration of the establishment of the first place of the instant case should be cancelled.

B. Defendant’s assertion

1) Nonparty 1, who was delegated by the Plaintiff, set up on behalf of the Plaintiff the registration of the establishment of the No. 1 neighboring mortgage of the instant case.

2) Even if the establishment registration of the first place of the establishment was completed without the Plaintiff’s delegation, the Plaintiff visited the △△ branch of the Defendant Cooperative on December 31, 2012 to allow the existence of the establishment registration of the first place of the establishment of the instant loan and obtain additional loans to pay the interest on the loan. The Plaintiff ratified Nonparty 1’s act of non-party 1’s act of establishing the first place of establishment registration.

3. Part concerning claims for cancellation of registration of creation of a neighboring mortgage;

A. Judgment on the main argument

1) Whether to act on behalf of others

According to the above facts, the registration of establishment of the creation of the first place of the instant case is not established by Nonparty 1 on behalf of the Plaintiff, as alleged by the Defendant, but completed a forged document by Nonparty 1 and Nonparty 2, as alleged by the Plaintiff, and thus, it is a registration of invalidation without any legal ground.

2) Determination on the defendant's defense of ratification of unauthorized Representation

A) In light of the following facts and circumstances, even if there is any defect in the process of registering the establishment of the second class mortgage of this case, the Plaintiff expressed to the Defendant the intention of 13,237,000 of this case by setting up the registration of the establishment of the second class mortgage of this case and receiving the loan of KRW 14,00,000 from the loan of KRW 14,00 to 14,00,000 to 13,237,00 of this case by paying the interest on the first class mortgage of this case as the interest on the loan of the first class mortgage of this case, thereby putting up the legal effect following the registration of the establishment of the first class mortgage of this case:

① On May 21, 2012, following the completion of the establishment registration of the first place of the instant case, the Plaintiff, who was the founder, was notified of the completion of the registration in accordance with the relevant laws and regulations.

② When the interest payment of KRW 230,00,00 for the secured loan of KRW 230,000 was overdue from August 4, 2012, the Defendant notified the Plaintiff on August 2012 of the pre-announcement of the loss of profits due to the loan obligation. Since the delay was continued thereafter, the Defendant urged the Plaintiff to pay the interest on the loan, and notified the Plaintiff of the scheduled commencement of the voluntary auction due to the registration of creation of the first collateral mortgage of the instant case on November 16, 2012. The Plaintiff received the notification of the scheduled commencement of the voluntary auction on November 19, 2012.

③ On December 31, 2012, the Plaintiff visited the Defendant’s △△ Branch and signed all of the relevant documents, and received a loan of KRW 14,00,000 from KRW 13,237,00 among the loans, and paid KRW 13,237,00 as interest on the first collateral loan.

B) Therefore, the defendant's defense of ratification of the establishment registration of the No. 1 of this case was valid by the plaintiff's ratification is justified.

3) Sub-determination

Thus, we cannot accept this part of the plaintiff's assertion.

B. Determination as to the conjunctive assertion

1) The validity of an unauthorized representation is determined depending on the existence of ratification by the person himself/herself. The ratification is a sole act with the knowledge of an unauthorized representation and the effect of such an act belongs to the person himself/herself. If it is deemed that such an act of unauthorized representation has been ratified ex post facto, the legal effect shall belong to the person himself/herself, and it shall not be deemed that such act belongs to the person himself/herself, and the claim for damages arising from an unauthorized representation shall not be filed (see Supreme Court Decision 2001Da59217, Oct. 11, 2002, etc.).

2) On December 31, 2012, the Plaintiff paid KRW 13,237,00 to the interest on the instant loan against collateral security, and subsequently ratified the establishment of the establishment of the establishment of the creation of the creation of the first collateral security by Nonparty 2 and Nonparty 1. Therefore, the establishment of the establishment of the establishment of the first collateral security by Nonparty 2 and Nonparty 1 does not constitute tort any more upon the Plaintiff’s ratification.

3) If so, the Plaintiff’s assertion on this part, which was premised on the Defendant’s employee Nonparty 2’s establishment of the establishment of the creation of the first class mortgage of this case, constitutes a tort, is without merit without further review.

4. Part concerning claims for cancellation of registration of creation of a neighboring mortgage;

As seen earlier, since the establishment registration of the first place of the instant case was effective as ratification by the Plaintiff, this part of the Plaintiff’s assertion on the premise that the establishment registration of the first place of the instant case was null and void is without merit.

5. Conclusion

Therefore, each of the claims of the plaintiff in this case shall be dismissed as it is without merit, and the judgment of the court of first instance is just, and the plaintiff's appeal is dismissed as it is so decided as per Disposition.

Judges Lee Jong-hee (Presiding Judge)