The extent of probative value to reverse the presumption of the authenticity of a document pursuant to Article 358 of the Civil Procedure Act, in cases where the seal affixed to the document is deemed to be a stamp affixed by the seal;

Article 358 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han-sung, Attorneys Park Jae-soo and 1 other, Counsel for plaintiff-appellant)

Plaintiff 1 and two others (Law Firm Barun, Attorneys Lee In-bok et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm L&C, Attorneys Choi Ho-ho et al., Counsel for the defendant-appellant)

Changwon District Court Decision 2006Na10549 Decided October 26, 2007

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

The grounds of appeal are examined.

In a case where it is recognized that the seal imprinted in the document is a seal affixed to the document, the document shall be presumed to have been affixed by the person who prepared the document, i.e., the document's authenticity, unless there are special circumstances, and once it is presumed to have been established by the person who prepared the document pursuant to Article 358 of the Civil Procedure Act. Thus, the document's authenticity is presumed to have been established against the person who prepared the document or not based on the person who prepared the document's intent should be proved actively by the person who asserts it, and the probative value of evidence proving the fact of defense is insufficient enough (see, e.g., Supreme Court Decisions 87Meu707, Dec. 22, 1987; 96Da462, Jun. 13, 1997).

According to the reasoning of the judgment below, on the ground that Gap evidence Nos. 11 (the statement of non-party 1), Gap evidence Nos. 15-6 (the protocol of examination of witness against plaintiff 3), 7 (the protocol of examination of witness against plaintiff 1), and 8 (the protocol of examination of witness against plaintiff 2) and testimony by non-party 1 of the court of first instance, "the defendant prepared an agreement on division of inherited property in addition to the transfer of the business registration of ○○ Industrial Complex operated by the deceased non-party 2, and submitted the plaintiffs' certificate of personal seal impression and seal impression to the plaintiff 3 for the reason that "the transfer of the business registration of ○○ Industrial Complex operated by the deceased non-party 2 is for receiving relocation expenses caused by the redevelopment of the real estate in this case", and the defendant maintained the judgment of the court of first instance that held that "the defendant completed the registration of transfer of ownership in this case under the name of the plaintiff 4" without consent of the plaintiffs.

However, in light of the aforementioned legal principles and the following circumstances, it is difficult to accept the above judgment of the court below.

In light of the evidence adopted by the court below and the evidence not rejected by the court below, the plaintiff 3 stated that it was necessary for the defendant to change the name of the ○○ Industrial Complex registered in the name of the deceased and that the 2nd investigation agency issued a seal impression and a certificate to the defendant. The defendant stated in the complaint of this case that "after the deceased's death, the defendant jointly inherited the real estate of this case, which is the only heritage of the deceased, and delivered the certificate of personal seal impression and seal impression to the defendant." The defendant's statement of the plaintiff 1, who is the plaintiff 2, as well as the plaintiff 1, who was the husband of this case, was issued a seal impression and a certificate of personal seal impression to the defendant for the reasons that the plaintiff 2 had purchased the above 0th anniversary of this case's real estate under the name of the 3rd Industrial Complex, and that the plaintiff 1 was not subject to the plaintiff 2's allegation that it was necessary to change the name of the 3rd Industrial Complex, but the defendant should also be paid the plaintiff 10th of this case.

Furthermore, in light of the following circumstances revealed in the record, the cost of new construction of the instant real estate appears to have been borne by the Defendant. From March 4, 2002, the registration of ownership transfer was completed in the name of the Defendant with respect to the instant real estate from March 4, 2002 to September 12, 2005, the Plaintiffs did not raise an issue regarding the inheritance of the instant real estate for a long time. Plaintiffs 1 and 2 stated in the criminal trial that “the property was outside of the instant real estate, the Defendant, who is the south of the deceased, continued to gather the deceased, and there was no dispute about inheritance because the Defendant thought that the instant real estate was brought about by the Defendant.” Rather, it is more likely that the Plaintiffs consented to the sole inheritance of the instant real estate.

Ultimately, although the evidence adopted by the court below alone cannot be deemed to have reversed the presumption of the authenticity of the agreement on the division of inherited property of this case, the court below held that the agreement on the division of inherited property of this case was forged by the defendant only with the above evidence. Thus, the court below did not err by misapprehending the legal principles as to the presumption of the authenticity of document formation, or by misunderstanding of facts against the rules of evidence

Therefore, without further proceeding to decide on the remaining grounds of appeal, 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 Kim Young-ran (Presiding Justice)