[1] The standard for determining whether the other party to an expression agency has justifiable grounds to believe that the other party to the expression agency has the right of representation

[2] In a case where an agent entrusted with the sale of real estate concludes a transfer contract on the real estate to secure the payment of his/her obligation, the case holding that if the agent received all documents and seal imprints necessary for the registration of transfer of ownership and presented them to the other party and expressed that the agent has the right of representation to dispose of the real estate, there is no reasonable ground to believe that the other party has the right of representation, and further, it is not necessary to confirm whether

[3] Where an agent entrusted with the sale of real estate enters into a substitute payment contract on the real estate in lieu of the payment of his/her debt, the case holding that there is no justifiable reason to believe that the other party has the right of representation to provide the real estate as payment in lieu of payment, if documents and seal imprints required for the registration of transfer of ownership are delivered

[4] Method of ratification of an act of unauthorized representation and its counterpart

[1] Article 126 of the Civil Act / [2] Article 126 of the Civil Act / [3] Article 126 of the Civil Act / [4] Articles 130 and 132 of the Civil Act

[1] Supreme Court Decision 86Da2475 delivered on July 7, 1987 (Gong1987, 1301) Supreme Court Decision 2001Da49814 Delivered on June 28, 2002 (Gong2002Ha, 179) Supreme Court Decision 2007Da3031 Delivered on February 26, 2009 / [2] Supreme Court Decision 78Da282, 283 Delivered on March 28, 197 (Gong1978, 10759) (Gong107, 1057, 1057) / [4] Supreme Court Decision 86Da1821 Delivered on May 26, 1987 (Gong198Da31989 delivered on April 14, 198; Supreme Court Decision 2008Da31989 delivered on September 19, 198)

Plaintiff

Defendant 1 and two others

Gwangju District Court Decision 2008Na5284 Decided June 4, 2009

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

The Defendants’ grounds of appeal are also examined.

1. The judgment of the court below

According to the reasoning of the judgment below, the court below, based on the selected evidence, delegated the sale of each real estate owned by the plaintiff to the non-party who is a real estate broker on or around December 2005. The non-party thought that the non-party provided the non-party 1 real estate as a collateral for transfer in order to secure partial payment out of the separate real estate purchase and sale obligations borne by the defendant 1. On December 24, 2005, the non-party obtained the documents and seal impression necessary for the registration of transfer of the real estate of this case from the plaintiff 1 on behalf of the plaintiff 1 on January 11, 206 and entered into a contract for transfer of the real estate of this case on January 12, 206 in the form of a sale and purchase contract with the non-party 1 on behalf of the plaintiff 1, and completed the registration of transfer of ownership on behalf of the plaintiff 2, the non-party 2 and the non-party 2 on behalf of the plaintiff 2 on January 11, 2006.

Furthermore, based on the facts found above, the court below held that the act of the Nonparty’s offering of each of the instant real estate as security for transfer or payment in substitutes is null and void as it is an act of unauthorized Representation, and that the Nonparty’s offering of each of the instant real estate owned by the Plaintiff as security for transfer or payment in substitutes was an example of transaction practice, but did not confirm whether the said Defendants was entitled to provide each of the instant real estate as security for transfer or payment in substitutes to the Plaintiff on behalf of the Nonparty. Therefore, the court below rejected the defense by the aforementioned Defendants’ apparent representation, on the ground that there was no justifiable reason to believe that the said Defendants had the right to provide each of the instant real estate

In addition, the court below rejected the defendants' defense of ratification on the ground that the plaintiff issued a certificate of seal impression for real estate sale to the non-party as defendant 1 after the above contract for collateral security was insufficient to deem that the plaintiff ratified the above contract for collateral security, and that the plaintiff was granted a registration of establishment of a mortgage over the maximum debt amount of KRW 300 million with respect to the net City alternative interest rate of KRW 2639 square meters from the non-party on April 5, 2006 (hereinafter referred to as the "land number omitted) and completed the registration of establishment of a mortgage over the maximum debt amount of KRW 2639 square meters separately from the non-party on the ground that the plaintiff received KRW 70 million from the non-party on the other hand.

2. Judgment of the Supreme Court

A. Examining the relevant legal principles and records, the court below is just in holding that the transfer of security or provision of payment in kind by the Nonparty is null and void as an act of unauthorized representation, and there is no error in the misapprehension of facts against the rules of evidence or in the misapprehension of legal principles as to the scope of the right of representation, contrary to

B. In order to claim the effect of an expression agent beyond the authority under Article 126 of the Civil Act, the other party is required to believe that his/her agent has the right of representation and to believe that he/she performs an act other than his/her authority with the intention of representation clearly or implicitly, or with the intention of representation. The existence of justifiable grounds here should be objectively observed and determined (see Supreme Court Decisions 86Da2475, Jul. 7, 1987; 2001Da49814, Jun. 28, 2002; 2007Da30331, Feb. 26, 2009, etc.).

(1) First, we cannot accept the decision of the court below that rejected the defense by the above defendant's expressive representation on the ground that there is no justifiable reason to believe that the defendant 1 had the power to provide the non-party's real estate No. 1 as security for transfer.

As found in the facts established by the court below, if the non-party was delegated the sale of the first real estate by the plaintiff and presented it to the above defendant and expressed that the non-party had the right of representation to dispose of the said real estate by obtaining all documents and seal imprints necessary for the registration of transfer of ownership, the non-party was entitled to sell the first real estate of this case on behalf of the plaintiff, and there was a justifiable reason to believe that the non-party was entitled to provide the first real estate of this case by payment or transfer of transfer on behalf of the plaintiff. Furthermore, the non-party was responsible for the non-party's liability for the purchase price of the real estate of this case on behalf of the plaintiff and further confirmed whether the right of representation was granted directly to the plaintiff (see, e.g., Supreme Court Decisions 78Da282,283, Mar. 28, 1978; 86Meu1821, May 26, 1987)

Therefore, the judgment of the court below that there is no justifiable ground to believe that the above defendant has a right of representation to provide the non-party the real estate No. 1 as security for transfer, which affected the conclusion of the judgment, by misapprehending the legal principles as to justifiable grounds in the expression agency. The above defendant's ground of appeal

(2) Meanwhile, according to the facts acknowledged by the court below, when the non-party entered into a payment contract for the substitution of real estate No. 2 with Defendant 2, the non-party received documents necessary for the registration of transfer of ownership of the second real estate of this case and the Plaintiff’s seal impression certificate from the plaintiff only after he entered into the payment contract for the substitution of real estate No. 2 of this case, rather than the time of entering into the payment contract for the substitution of real estate No. 2 of this case.

Although there exists an inadequate expression in the lower court’s reasoning, the lower court’s decision that rejected the Defendant’s defense as to No. 2 real estate was eventually justifiable, and it did not err by misapprehending the legal doctrine on justifiable grounds in the expression representation, as otherwise alleged in the grounds of appeal. The Defendant’s ground of appeal concerning this is not acceptable.

C. Finally, the lower court’s rejection of Defendant 2’s defense of ratification is difficult to accept.

Since an unauthorized representation is in a state of uncertainty and the validity of it is determined depending on the existence of ratification of it, the ratification is a sole act with knowledge that it has an unauthorized representation and to vest the effect of it in itself (see, e.g., Supreme Court Decisions 89Da2100, Apr. 27, 1990; 95Da28090, Nov. 14, 1995; 95Da28090, Nov. 14, 1995). Since it does not require a special method, it can be done in an implied manner as well as in an express manner, and it can be done against the unauthorized Agent or the other party to the unauthorized Representation (see, e.g., Supreme Court Decisions 80Da2314, Apr. 14, 1981; 90Da17088, Mar. 8, 1991).

In light of the above legal principles, if the plaintiff knew that the second real estate of this case was provided as a substitute payment and received the establishment registration of a mortgage of KRW 300 million from the non-party on the real estate located in the above net city alternative interest rate (hereinafter its lot number omitted) from the non-party as stated in the judgment of the court below, the plaintiff's intention is likely to be implicitly ratified by the non-party's act of accord and satisfaction (see Supreme Court Decision 72Da628, May 30, 1972).

Therefore, the lower court needs to further examine whether the Plaintiff received damages from the Nonparty on the premise that the Nonparty recognized the validity of the act of the non-party acting as a non-exclusive agent on the premise that the Plaintiff received the registration of the establishment of the above mortgage from the non-party and received the money separately.

Nevertheless, the court below determined that the above circumstance alone was insufficient to recognize that the plaintiff had an intention to ratification the instant payment contract, and thus rejected Defendant 2’s defense of ratification. In so doing, the court below erred by misapprehending the facts contrary to the rules of evidence or by misapprehending the legal principles on the ratification of the act of unauthorized representation, which affected the conclusion of the judgment. The above Defendant’s ground of appeal assigning this point is with merit.

3. Conclusion

Therefore, the judgment below is reversed, and 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 Jeon Soo-ahn (Presiding Justice)