Plaintiff (Attorney Park Chang-hun et al., Counsel for the plaintiff-appellant)

Republic of Korea and three others

January 9, 2013

1. The Plaintiff:

(a) Defendants 2, 3, and 4 shall pay 36,327,383 won per annum and 20% per annum from July 28, 2012 to the date of full payment;

B. Defendant Republic of Korea shall pay 295,467,443 of the above Defendants and their respective money, and 5% interest per annum from July 28, 2012 to January 23, 2013, and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims against the defendant Republic of Korea are dismissed.

3. Of the costs of lawsuit, the part arising between the Plaintiff, Defendant 2, 3, and 4 shall be borne by the said Defendants. Of the part arising between the Plaintiff and the Defendant Republic of Korea, the Plaintiff and the remainder shall be borne by the Defendant Republic of Korea

4. Paragraph 1 can be provisionally executed.

The Defendants shall pay to each Plaintiff 36,327,383 won with 20% interest per annum from the day following the day of the final service of the copy of the instant complaint to the day of complete payment.

1. Basic facts

A. On August 16, 2007, the land of this case was originally owned by the Plaintiff. On January 12, 2007, part of the ownership transfer registration was completed in Defendant 2’s name on the ground that the property division of 2/5 shares out of the land of this case was based on the property division on January 12, 2007.

B. On February 12, 2008, Defendant 2 filed a lawsuit against the Plaintiff for partition of co-owned property on the instant land. The Suwon District Court rendered a decision in lieu of conciliation on September 30, 2008 (hereinafter “instant compulsory conciliation decision”). The instant compulsory conciliation decision became final and conclusive on October 23, 2008, and the main contents thereof are as follows.

1. If Defendant 2 entered into a contract to sell Defendant 2’s share in the instant land to a third party at KRW 38,00,000 per square meter by January 31, 2009, the Plaintiff also sells the Plaintiff’s share in the instant land to the same person under the same condition.

2. If the plaintiff or the defendant does not comply with paragraph 1, the defendant 2 will purchase the plaintiff's share in the land of this case from the plaintiff at the price set forth in paragraph 1.

3. The method of performing the sales contract under paragraph (2).

A. By January 31, 2009, Defendant 2 paid the Plaintiff the amount under Paragraph 2 at the same time with the registration of ownership transfer of 3/5 shares out of the instant land received from the Plaintiff, and Defendant 2 paid the Plaintiff the amount by adding damages for delay at the rate of 20% per annum in cases where Defendant 2 delayed the payment of the said amount even though the Plaintiff provided the above documents for ownership transfer registration to Defendant 2.

B. At the same time, the Plaintiff received the money under paragraph (a) from Defendant 2, and simultaneously performed the registration procedure for transfer of ownership with respect to the shares stated in paragraph (a).

C. On October 23, 2008, the day when the decision of compulsory adjustment became final and conclusive, Nonparty 7, Defendant 2’s attorney Nonparty 7 applied for the certification of delivery and confirmation of the instant compulsory adjustment decision, and applied for the grant of execution clause. However, although Defendant 2 did not pay the money stated in Article 3-A(a) of the instant compulsory adjustment decision to the Plaintiff and the presiding judge did not issue an order, Nonparty 4 granted the execution clause (hereinafter “instant execution clause”) to Defendant 2 on October 23, 2008, stating that “the original copy is delivered to Defendant 2 to implement compulsory execution against the Plaintiff and Defendant 2” in the original copy of the instant compulsory adjustment decision.

D. On January 31, 2009, the sale period stipulated in paragraph (1) of the instant compulsory adjustment decision, the Plaintiff notified Defendant 2 to pay the purchase price twice on February 3, 2009 and on January 11, 2009, but Defendant 2 did not pay the purchase price. The Plaintiff was entrusted to a certified judicial scrivener office with documents necessary for the registration of transfer of shares owned by himself (hereinafter “instant shares”) out of the instant land, and notified this to Defendant 2. On July 27, 2009, the Plaintiff applied for a compulsory auction against shares owned by Defendant 2 out of the instant land.

E. Accordingly, Defendant 2 conspired with Defendant 4, who is the actual manager of Defendant 3 and Dasan Co., Ltd. (hereinafter “Dasan”) who is his own living together, decided to transfer the instant shares in his own name. On Nov. 4, 2009, concluded an agreement on the exchange of land with two forest land located in Dasan-si District ( Address 3 omitted) and ( Address 4 omitted) in Dasan-si, and completed the entire transfer registration on November 11, 2009 as to the instant shares based on the instant decision on compulsory conciliation that was granted the instant execution clause on Nov. 11, 2009, based on the compulsory conciliation, Defendant 2 completed the ownership transfer registration on the ground of the partition of co-owned shares in the name of Defendant 2, and completed the ownership transfer registration on the same day. On the same day, the ownership transfer registration was completed in the name of Dasan-si on November 27, 2009).

F. On December 10, 2009, with respect to the instant shares, the ownership transfer registration for which was completed under the name of Dasan was completed, the Plaintiff filed a lawsuit on December 10, 2009 with the Suwon District Court Branch of Seoul District Court (2009Gahap 16700) seeking the procedure for the registration of cancellation of the ownership transfer registration for the instant shares, with respect to Defendant 2 and Dasan, etc. on December 16, 2009, on the basis of Defendant 2’s share transfer registration for the instant shares, the right to claim ownership transfer in the name of Dasan, the provisional registration based on the ownership transfer registration and ownership transfer registration for the instant shares, and the provisional registration based on each of the above registrations. However, on May 25, 2010, the Plaintiff’s appeal was affirmed on May 23, 2010 between the Plaintiff and Defendant 2, but the lower court rendered a favorable judgment against the Plaintiff on November 23, 2010.

G. Meanwhile, Defendant 2, 3, and 4 were indicted for the crime of false entry into public electromagnetic records, etc. with regard to the registration of ownership transfer under Defendant 2’s name.

[Reasons for Recognition]

○ Defendant Republic of Korea: Facts without dispute, Gap 2 through 10 evidence, Gap 13 evidence (including each number), and the purport of the whole pleadings

○ Defendant 2: Judgment by deeming confession (Articles 208(3)2 and 150(3) of the Civil Procedure Act)

○ Defendant 3 and 4: Judgment by public notice (Article 208(3)3, Articles 194 through 196 of the Civil Procedure Act)

2. Determination as to Defendant 2, 3, and 4

As examined below, the above Defendants conspired to the effect that the execution clause of this case was unlawfully mistakenly imposed. After the completion of the registration of ownership transfer in the name of Defendant 2, Defendant 2 completed the registration of ownership transfer right transfer right provisional registration and principal registration, making it impossible for the Plaintiff to use or profit from the portion of this case, and made the Plaintiff a provisional disposition registration of prohibition of disposal of the portion of this case, and made the Plaintiff take a total of KRW 10,859,940 under the pretext of registration tax, etc. As such, the Defendants, as a joint tortfeasor, are liable to pay damages for delay at the rate of KRW 10,85,467,443, the sum of KRW 10,859,940 and KRW 36,327,383,00 as the sum of the registration tax and the registration tax and the amount of damages for delay at the rate of 20,000 per annum from July 28, 2012, which is the last day following the delivery date of the complaint of this case.

3. Determination on Defendant Republic of Korea

A. The plaintiff's assertion

The non-party 4, who is a public official, granted the wrong execution clause of this case to Defendant 2 by negligence so that Defendant 2, etc. can commit a series of illegal acts as seen in paragraph 2 above by using the execution clause of this case. The defendant Republic of Korea is liable to compensate for the illegal acts of Non-party 4 who is a public official of the Republic of Korea with Defendant 2, 3, and 4, respectively.

B. Determination

1) Occurrence of damages liability

A) Public official’s negligence

If there is no objection in lieu of conciliation, or an objection is withdrawn or dismissed and confirmed, the conciliation obligee is entitled to enforce a compulsory execution by a decision in lieu of conciliation, and on the other hand, if the content of a debtor's obligation is the obligation to state his/her intention like the implementation of the procedure for transfer of ownership, a decision in lieu of conciliation may be deemed to have been made. However, if the above doctor's statement bears conditions such as performance of consideration, etc., the obligee submits documents proving the fulfillment of the above conditions to the court keeping the records of the case for compulsory conciliation, etc., and the execution clause becomes effective when the execution clause is granted to the original copy of the decision in lieu of conciliation after going through prescribed procedures, such as submission of documents attesting the fulfillment of the above conditions. Thus, in granting the execution clause to the original copy of the decision in lieu of conciliation, a junior administrative officer, etc. shall confirm the fulfillment of conditions and grant the execution clause upon the order of the presiding judge (see Articles 263(2), 30,

However, according to the basic facts, the decision of compulsory adjustment of this case entered into a sales contract of KRW 38,00,00 per square year between the Plaintiff and Defendant 2 on January 31, 2009, and the Plaintiff and Defendant 2 bear both the Plaintiff’s obligation to transfer the Plaintiff’s ownership and the obligation to pay the purchase price under the conditions of simultaneous performance. The non-party 4 confirmed whether the conditions stated are fulfilled, i.e., the obligation to grant the execution clause upon the order of the presiding judge, and did not confirm whether Defendant 2 paid the purchase price for the portion of this case to the Plaintiff, and granted the execution clause to Defendant 2 to execute the decision of compulsory adjustment of this case without confirming whether Defendant 2 paid the purchase price for the portion of this case to the Plaintiff. The negligence of Non-party 4 who is a public official is recognized.

B) A causation

If the content of a public official’s duty imposed on a public official is not merely for the public interest or for the purpose of protecting the safety and interests of an individual of the members of the society, but entirely or incidentally for the purpose of regulating the order inside the administrative agency, the State shall be liable to compensate for the damage suffered by the victim due to the public official’s breach of such duty to the extent that proximate causal relation is acknowledged. In determining the existence of proximate causal relation, the State shall comprehensively take into account not only the probability of the occurrence of a general result, but also the purpose of Acts and subordinate statutes and other rules of conduct imposing an official duty, the form of the harmful act, and the degree of damage (see Supreme Court Decision 2005Da489

In light of the following circumstances, which are acknowledged by comprehensively taking into account the evidence as mentioned above and the purport of the entire pleadings, i.e., erroneous registration of transfer of ownership, etc., if a true registration has not been completed, it would be difficult for the Plaintiff to use and make profits from the shares of this case, as long as the legal status of the shares of this case, which were originally owned by himself, is unstable, and it would have been possible to use and make profits from the shares of this case on the premise of Nonparty 4’s negligence, and there was a proximate causal relation between Defendant 2, 3, and 4 as well as the mistake of the above Defendants, and the negligence of Nonparty 4 and the Plaintiff’s damage ( even if Defendant Republic of Korea did not commit a tort against Defendant 4, even if Defendant 4 did not commit a tort, it was found that there was no proximate causal relation between Nonparty 4’s tort and the Plaintiff’s damage, but the Plaintiff could not be deemed to use and make profits from the shares of this case on the ground that the decision of compulsory sale of ownership of this case was rendered on the land of this case.)

C) Sub-determination

Accordingly, Defendant Republic of Korea is liable to compensate each of Defendant 2, 3, and 4 under Article 2 of the State Compensation Act for the plaintiffs.

(b) Scope of damages;

First, due to Defendant Republic of Korea’s tort, the Plaintiff suffered losses from November 11, 2009, when Defendant 2 completed the registration of entire ownership transfer in its name regarding the instant shares from the date when the Plaintiff filed a claim for cancellation of the registration against Dasan, etc. and was sentenced to a final judgment in favor of the Plaintiff until March 15, 2012. However, in full view of the purport of the entire pleadings as a result of the appraiser Nonparty 5’s appraisal of rent, the amount equivalent to the rent where there is no deposit for the instant shares from November 11, 2009 to March 15, 2012 can be acknowledged as constituting 295,467,43 won and damages for delay (including the Plaintiff’s 295,467,43 won and losses for delay). Thus, Defendant Republic of Korea is liable to compensate the Plaintiff for damages, regardless of Defendant 4’s tort, etc.’s actual use of and profit from the instant shares. However, there is no evidence to acknowledge otherwise.

On the other hand, in order to prevent Defendant 2, etc. from disposing of the shares in this case under his name on the wind for the registration of ownership transfer by Nonparty 4’s illegal act, the Plaintiff alleged that Defendant 2, etc. suffered losses in aggregate of KRW 10,859,940 under the name of registration tax, etc. while making a provisional disposition for the prohibition of disposal as to the shares in this case in order to prevent Defendant 2, etc. from disposing of them to a third party. However, this is separate from that of the Plaintiff’s failure to use or make profits from the shares in this case, and it is a special damage. However, there is no evidence to prove that Nonparty 4 knew or could have known that at the time of the above illegal act, the Plaintiff was aware of the fact that the Plaintiff was able to dispose of the shares in this case by making a provisional disposition for prohibition of disposal as to the shares in this case, and there is no evidence to prove that the Plaintiff sustained losses in addition to the damages

C. Whether comparative negligence exists

The defendant Republic of Korea asserted that the plaintiff was able to know the fact that the execution clause was granted through the case search of the Supreme Court until the time when the plaintiff completed the registration of transfer of ownership with respect to the shares of this case after the non-party 4's tort, and that the plaintiff did not raise an issue with respect to the grant of the execution clause of this case, and that the plaintiff's negligence caused damages or expansion. However, it is difficult to view that the defendant 2 was able to find that the plaintiff was aware of the grant of the execution clause of this case prior to the completion of the registration of transfer of ownership with respect to the shares of this case, and that there is a duty to confirm the grant of the execution clause through the case search of the Supreme Court in preparation for the possibility of granting the plaintiff's erroneous execution clause.

D. Sub-committee

Therefore, Defendant Republic of Korea is obligated to pay damages for delay calculated at each rate of KRW 295,467,443, out of KRW 36,327,383, which is recognized as above, as damages for Defendant 2, 3, and 4, and at the same time from July 28, 2012, which is the day following the date of final delivery of a copy of the complaint of this case, to Defendant Republic of Korea, as sought by the Plaintiff, for the existence and scope of the obligation, until January 23, 2013, which is deemed reasonable for Defendant Republic of Korea to dispute over the existence and scope of the obligation, and 5% per annum under the Civil Act until January 23, 2013 and 20% per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the following day until the day of full payment.

4. Conclusion

Therefore, since the plaintiff's claims against the defendant 2, 3, and 4 are well-grounded, all of them shall be accepted. The plaintiff's claims against the defendant Republic of Korea shall be accepted within the extent of the above recognition, and the remaining claims shall be dismissed as it is so decided as per Disposition.

Judges Lee Chang-tae (Presiding Judge)

1) On the other hand, after the transfer of the shares in this case in Defendant 2’s name, the registration of creation of a neighboring mortgage in the name of Nonparty 8 was completed with respect to the shares in this case on November 11, 2009. After the transfer of the shares in this case’s name, on November 30, 2009, the provisional registration of the right to claim a transfer of all shares in the name of Nonparty 9 and the registration of the establishment of the entire shares was completed

2) In relation to this, the Plaintiff shared a total of KRW 10,859,940 with registration tax, etc.

Note 3) The grounds for recognition are as set out in Section 3.b. below.