Effect of documents prepared as an agent of a deceased person

Unless there are special circumstances, it is difficult to regard the document prepared as a representative of the deceased person as having been prepared on the basis of legitimate power of representation.

Article 114 of the Civil Act

Plaintiff 1 and four others

Defendant

Daejeon District Court Decision 83Na388,389 delivered on May 9, 1984

The judgment below is reversed, and the case is remanded to Daejeon District Court Panel Division.

1. We examine the grounds of appeal of right.

The gist of the grounds of appeal is that the court below recognized that the Plaintiff (Counterclaim Defendant; hereinafter the Plaintiff) 1’s prior-party Nonparty 3 donated the instant land to the Defendant (Counterclaim Plaintiff; hereinafter the Defendant) based on the testimony of Nonparty 1 and Nonparty 2 of the first-class witness Nonparty 1 and Nonparty 2 of the second-class trial witness was an unlawful act of violating the rules of evidence and incomplete hearing. However, such a ground of appeal does not fall under any of the grounds provided for in each subparagraph of Article 11(1) of the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, etc., and it does not constitute a legitimate ground of appeal.

2. We examine the grounds of appeal for permission.

(1) According to the reasoning of the judgment below, the following facts are acknowledged: Eul evidence Nos. 1 (Waiver), Eul evidence Nos. 2 (Certificate of Reclamation), Eul evidence Nos. 3 (Certificate of Completion of Reclamation), Eul evidence Nos. 5-2 (Protocol of Completion of Reclamation), and Eul evidence Nos. 1 and the testimony of non-party No. 1, 4 and non-party No. 2 of the court of first instance as the witness of the court of first instance, and each of the testimony of the non-party No. 2 of the court of first instance: (a) renounced the plaintiffs' transfer of the land to the defendant on Nov. 1, 1962; (b) drafted and delivered a waiver as of Dec. 1 of the year; and (c) accordingly, (c) the defendant completed the development of the land with the permission granted under the Land Clearing Promotion Act on the neighboring land including the land of this case; and (d) dismissed the plaintiffs' claim against the plaintiffs for the counterclaim

(2) However, in light of the records, the evidence admitted by the court below as to the fact that the deceased non-party 3 donated the land of this case to the defendant is difficult to accept as follows.

First, the evidence No. 1 (Waiver) is a document with the statement that Nonparty 1, the agent of Nonparty 5 on December 12, 1962, Nonparty 1, as the agent of Nonparty 1, in the name of the defendant, waives the healthy portion of the answer (definite in the name of address omitted) and affixed his/her signature and seal to the defendant. According to the evidence No. 5-1 (refinite) without dispute over the establishment, it is evident that the above non-party 5 is a person who already died on March 23, 1945, and barring special circumstances, it is difficult to see that the above document prepared as the agent of the deceased person was made on the basis of a legitimate power of attorney.

On this point, the testimony of the non-party 1 and the non-party 2 at the court of first instance, when preparing the written waiver, the non-party 3, the landowner, directly participated, and at the time of the preparation of the written waiver, the non-party 5, the deceased non-party 3, the deceased non-party 3, the deceased non-party 3, and at the request of the above non-party 3, the non-party 5, but according to the evidence Nos. 5 (written statement) established by the court below, it is clear that the non-party 1 knew the non-party 3 as the non-party 5 at the time of being examined as the witness of the case where the obstruction of business against the defendant was committed. In the above investigation, the non-party 3 was known to the non-party 5 at the time of the preparation of the written waiver and brought his seal to the non-party 5, and the non-party 4's testimony at the court of first instance, the non-party 2's name and the non-party 3, the non-party 5's title.

Second, if the above waiver was prepared by the above non-party 3's will and the Dong participated at the time of the preparation of the above evidence, it is against the precedent that the non-party 3, the principal, and the document was prepared in the name of the non-party 1 as the evidence of donation of the land ownership, and that the document was prepared in the name of the non-party 3, and that the above non-party 3 was not in possession of the seal, so this defense is not clearly accepted.

Third, according to the above evidence Nos. 5, the above non-party 1 stated that the above non-party 1 prepared the above waiver prior to commencement of the reclamation, while the defendant started the reclamation of the land of this case as Domindo, although the land of this case was owned by Domindo, it is clear that Domini is the plaintiff's side (in view of the former and latter use of the land as the context, Domini Kim Jong-ci's side). Thus, it is obvious that the defendant's side and the Domini were Domini, as the Domini is the land where the Domini formed the land of this case, and the above non-party 1 prepared the waiver of the contents of the above waiver on behalf of the above non-party 3, as stated in the above letter of renunciation, it is difficult to understand that the non-party 1 would refuse the plaintiff's reclamation of the land of this case and eventually refuse the plaintiff's reclamation of the land of this case.

Fourth, according to the records, the plaintiffs presented evidence Nos. 6 (Written Objection) by asserting that the defendant was trying to register the ownership transfer of the land of this case in accordance with the Act on Special Measures for the Registration, etc. of Ownership of Real Estate around January 1965 by making himself/herself Nonparty 6, who was born by the defendant in the first instance court, and that the above non-party 3 did not achieve the purpose with the above non-party 3's objection, and the defendant's answer to the evidence Nos. 6 is the site. If the above assertion is made, it is obvious that the defendant's letter of gift of this case is a false fact. Thus, the court below should have made efforts to discover the substantial truth by demanding the plaintiffs to prove the admissibility of evidence No. 6 and the above argument.

However, according to the records, the court below held that it is difficult to avoid criticism that there is an obstacle to the exercise of the right of explanation and the hearing without hearing, because the court below opened a single date for pleading, and examined one of the defendant's applicants witness who was adopted outside the prescribed date for pleading, and concluded the pleading.

(3) Ultimately, it is reasonable to discuss the violation of the rules of evidence and the violation of the incomplete deliberation as above as a ground for reversal under Article 12(2) of the Act on Special Cases concerning the Promotion, etc. of Lawsuit

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Lee Sung-soo (Presiding Justice)