In a case where Party A, who created a right to collateral security, forged the power of attorney B, a foreign national Korean, to apply for registration of cancellation of the right to collateral security, and subsequently, Party B applied for registration of cancellation of the right to collateral security without obtaining the certificate of completion of registration or written notice of completion of registration, and Party B’s application for registration of cancellation without obtaining the certificate of completion of registration or written notice of completion of registration, and Party B’s signature signed by proxy, etc. was not proven by a foreign government office, but due to lack of proof of Korean diplomatic missions abroad, the case holding that Party B was negligent by neglecting the ordinary duty of care in accordance with the relevant Acts and subordinate statutes.

Articles 750 and 760 of the Civil Act, Article 2(1) of the State Compensation Act, Article 40 of the former Registration of Real Estate Act (amended by Act No. 8435 of May 17, 2007) (see Article 24(2) of the current Registration of Real Estate Act, Articles 43 and 46 of the current Registration Rules), 49 (see Article 51 of the current Registration of Real Estate and Article 11 of the current Registration Rules), and 55 (see Article 29 of the current Registration of Real Estate) of the same Act.

Plaintiff (Law Firm Shin, Attorney Song-chul et al., Counsel for plaintiff-appellant)

Defendant 1 and one other (Law Firm Dadam, Attorney Jeong Jae-hun, Counsel for the defendant-appellant)

Seoul High Court Decision 201Na32206, 32213 decided January 24, 2013

All appeals are dismissed. The costs of appeal are assessed against the Defendants.

The grounds of appeal are examined.

1. As to the Defendants’ negligence, etc.

According to the reasoning of the judgment below, the court below acknowledged the facts based on the adopted evidence. Since Defendant 1 did not obtain a certificate of completion of registration or a written notice of completion of registration on his right from Nonparty 1, who is a delegating person and a person responsible for registration, the person responsible for registration, to file the instant application for registration on behalf of Nonparty 1 on behalf of Nonparty 1, the court below held that, in order to file the instant application for registration on behalf of Nonparty 1, Defendant 1 should prepare and submit a confirmation document as provided by Article 49(1) of the former Registration of Real Estate Act (amended by Act No. 8435 of May 17, 2007; hereinafter the same shall apply) and Defendant 1 caused Nonparty 2, who is the chief of the office, to act on behalf of the person responsible for registration in excess of an act of fact, such as the entries required in the confirmation document form, etc., in preparing the confirmation document, the court below held that Nonparty 2 failed to verify his identity in front of the resident registration certificate, passport, etc. and affixed his official seal to Nonparty 1.

In addition, the court below examined whether documents necessary for the application for registration under Article 40 of the former Registration of Real Estate Act are properly attached pursuant to Article 55 of the same Act, and whether documents are mutually placed. If necessary documents are not prepared, the court below should reject the application for registration unless the applicant corrects such defects on the same day or corrected them within a relatively short time. Non-party 1 is a foreign nationality Korean, i.e., the United States of America, and there is no certification certificate system. Thus, it should be proved by the government office of the United States or notarial acts related thereto that the applicant directly prepared the signature of Non-party 1, which is part of the documents for the application for registration of this case, and thus, it is difficult for the registrar to accept the application for registration of this case as an applicant for registration of this case, even if it was proved that the non-party 1 was not an applicant for registration, but an applicant for registration, who was not an applicant for registration, to have been responsible for the registration of this case under the law of the former Registration of Real Estate Act, and thus, it is difficult to issue the report of this case as an applicant for non-party 1.

In light of the relevant legal principles and records, such determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, by misapprehending the legal principles as to causation in the delegated duty of care or duty of care or duty of care or duty of care or duty of care of institution in preparation of confirmation documents following the completion of registration,

2. As to the ground of appeal on the occurrence and scope of damage

Property damage caused by a tort is a difference between the property disadvantage incurred therefrom, that is, the property condition that existed without a tort and the current property status. It includes active damages that lose existing interests and passive damages that could not obtain profits that could be gained in the future. Whether such damage actually occurred or not should be determined reasonably in light of social norms (see, e.g., Supreme Court en banc Decision 91Da33070, Jun. 23, 1992; Supreme Court Decision 2010Da76368, Jul. 28, 2011).

Based on the reasoning of the judgment below, the court below determined that the amount of damages suffered by the plaintiff was the minimum amount confirmed by the Seoul Western District Court Decision 2006Gahap4120 decided December 7, 2007, which was affirmed in favor of the non-party 1 against the non-party 3 among the secured debt amount of the mortgage of this case, and was equivalent to KRW 150 million claimed by the plaintiff.

In light of the aforementioned legal principles and records, the above determination by the court below is just and acceptable. Contrary to the allegations in the grounds of appeal, there were no errors by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules, or by misapprehending the legal principles as to the occurrence and calculation of damages,

3. As to the ground of appeal on the validity of the prohibition of re-instigation

The judgment of the court below on the validity of the prohibition of re-instigation is merely to clarify the legal nature of the plaintiff's claim of this case and to express the legal opinion of the court below on its legal effect, and it does not generate any legal effect. Therefore, it is difficult to deem that the court below erred in violation of the provisions concerning exclusive jurisdiction as it goes against the major principles of civil procedure that a judge who is not allowed to participate in the judgment pursuant to the law is involved in the judgment, or infringes the right to trial guaranteed by the Constitution and the court of the lawsuit should judge the case. The ground of appeal on this part is not acceptable.

4. Conclusion

Therefore, all appeals are 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 on the bench.

Justices Lee Ki-taik (Presiding Justice)