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(영문) 대법원 2003. 1. 10. 선고 2000다61671 판결
[손해배상(기)][공2003.3.1.(173),585]
Main Issues

[1] Whether a certified judicial scrivener has a duty to provide appropriate explanation or advice to the persons concerned within the scope related to the performance of his/her duties (affirmative)

[2] In a case where a certified judicial scrivener who was requested to act as an applicant for registration does not conform to the purpose of delegation, or when the client’s instruction is disadvantageous to the client, whether the client is informed of such content and whether the client is obliged to demand or recommend the modification (affirmative)

[3] The case holding that a certified judicial scrivener who requested the registration of creation of a new collateral security by cancelling the registration of creation of a new collateral security under the name of the client's wife, which was registered as a seizure, has an obligation to recommend the method of additional registration of transfer of collateral security to the certified judicial scrivener who requested the registration of creation of a new collateral

Summary of Judgment

[1] In the Certified Judicial Scriveners Act, the affairs of a certified judicial scrivener are prescribed in the said Act, not to participate in a lawsuit or other dispute, and the Attorney-at-Law Act prohibits a person other than an attorney-at-law from receiving money and other valuables, etc. to handle a lawsuit. However, it is not possible for a certified judicial scrivener to give appropriate explanation or advice to the person concerned within the scope related to the performance of his duties stipulated in other Acts, and it is not exempt from other Acts, etc.

[2] The legal relationship that the general public requests a certified judicial scrivener to apply for registration and accepts by a certified judicial scrivener is a delegation under the Civil Act. Since the mandatory performs the delegated affairs with the care of a good manager according to the purport of the delegation, a certified judicial scrivener who is the mandatory must first follow the instructions of the delegating client. However, if the performance of the instructions is not appropriate for the purpose of delegation, or is disadvantageous to the client, he/she may inform the client of the details thereof, and request or advise the client to change the instructions.

[3] The case holding that a certified judicial scrivener who requested the registration of creation of new collateral security by cancelling the registration of creation of new collateral security under the name of the client's wife which was established on the real estate on which the registration of seizure was made and has an obligation to recommend the method of additional registration of transfer of collateral security to the certified judicial scrivener who requested the registration of creation

[Reference Provisions]

[1] Articles 2 and 21 of the Certified Judicial Scriveners Act, Article 109 of the Attorney-at-Law Act / [2] Article 681 of the Civil Act / [3] Article 681 of the Civil Act, Article 2 of the Certified Judicial

Reference Cases

[2] Supreme Court Decision 2001Da32984 Delivered on September 14, 2001

Plaintiff, Appellant

Choi Jin (Law Firm Tae-jin, Attorneys Kim Dong-ho et al., Counsel for the plaintiff-appellant)

Defendant, Appellee

Defendant (Law Firm Shinsung, Attorneys Ansan-gu et al., Counsel for the defendant-appellant)

Judgment of the lower court

Busan High Court Decision 98Na10700 delivered on October 13, 2000

Text

The judgment below is reversed, and the case is remanded to Busan High Court.

Reasons

1. Fact-finding and judgment of the court below

A. The lower court acknowledged the following facts.

(1) On January 10, 1995, the Plaintiff sold the instant apartment owned by the Plaintiff to the Non-Party Hyjin, and received part of the purchase price and paid the remainder to the Non-Party 40 million won. On February 14, 1995, the Plaintiff registered the creation of the first collateral security right with a collateral for the remainder of 40 million won as a security for the remainder of 40 million won upon completing the registration of ownership transfer in the name of the new iron.

B. On April 17, 1997, the Plaintiff visited the office of the Defendant, a certified judicial scrivener, along with the Jinjin-gu and leaptain (hereinafter referred to as the “Plaintiff, etc.”) on April 17, 1997. The Plaintiff, etc. granted a loan certificate (No. 2) stating that the Jinjin-gu borrowed KRW 40 million on the above date and set up a new maximum debt amount of KRW 50 million on the apartment of the instant apartment as the collateral, and requested the Plaintiff to cancel the first collateral and complete a procedure to set up a new collateral under the name of the Plaintiff.

Article 22(1) of the Civil Act provides that “The registration of establishment of a new collateral security right under the name of a new owner of a new owner of a new owner of a collateral security right shall be cancelled and the registration of establishment of a new owner of a collateral security right under the name of a new owner of a new owner of a collateral security right shall be cancelled and the registration of establishment of a new owner of a collateral security right under the name of a new owner of a new owner of a collateral security right shall be completed, and the registration of establishment of a new owner of a collateral security right shall be completed on July 1, 1996, which was already made by the State (Jurisdiction of Ulsan Tax Office: Ulsan Tax Office) to the owner of a right on the apartment of this case through the Busan District Court’s Busan District Court’s Busan District Court’s Busan District Court’s assistance registry and registry.”

Applicant Since then, the country (the jurisdiction of Ulsan Metropolitan Government) started the auction procedure of the apartment in this case in order to collect national taxes in arrears.

B. Then, the court below rejected the plaintiff's assertion that the defendant, a certified judicial scrivener, has a duty to have recommended the plaintiff to make an additional registration prior to the first mortgage because the defendant had been in accordance with the procedure of additional registration prior to the second mortgage instead of the cancellation of the first mortgage and the establishment of the second mortgage, he could have given priority to the tax claims of the State and Seodaemun-gu Office based on the seizure after the first mortgage was established.

In full view of the contents of the Certified Judicial Scriveners Act and the Enforcement Rule of the Certified Judicial Scriveners Act, a certified judicial scrivener’s affairs are limited to preparing documents, filing an application, or submitting documents in accordance with the purport delegated by the parties. Here, the determination of legal effect or result that may be caused by the party’s request, and the act of providing advice or providing advice to the party at will in favor of the party concerned cannot be deemed to fall under the scope of his affairs (the act of providing the above legal advice and advice shall be in violation of the Attorney-at-Law Act, which is a mandatory law). Therefore, even if the Defendant was delegated to the Plaintiff to handle the registration affairs with professional authority, it cannot be deemed that the Plaintiff would lose the right of priority upon cancelling the registration of the establishment of the first right of collateral security and the establishment of the second right of collateral security upon the establishment of the second right of collateral security, or that the above additional registration procedure determined as more favorable to the Plaintiff cannot be deemed to have an official duty to be established (the Defendant, after the first right of collateral security, notified the Plaintiff of the fact that the registration was completed.)

2. The judgment of this Court

A. Ground of appeal No. 1

In light of the records, the above fact finding by the court below is acceptable, and there is no error in the incomplete hearing or the violation of the rules of evidence as alleged in the grounds of appeal.

B. Judgment on the second ground for appeal

(1) As stated in the judgment of the court below, the Certified Judicial Scriveners Act provides that the affairs of a certified judicial scrivener shall be prohibited from participating in a lawsuit or other dispute exceeding the scope of his duties, and the Attorney-at-Law Act prohibits a person other than an attorney-at-law from receiving money, etc. and handling the litigation case. However, it is not possible for a certified judicial scrivener to give appropriate explanation or advice to the person concerned within the scope related to the performance of duties stipulated in the Certified Judicial Scriveners Act, and it does not exempt the person concerned from the duty

The legal relationship that the general public requests a certified judicial scrivener to file an application for registration and that the certified judicial scrivener accepts is a delegation under the Civil Act. Since the mandatory performs the delegated affairs with the care of a good manager according to the principal intent of the delegation, a certified judicial scrivener who is the mandatory must first follow the instructions of the clients, who are the mandators, but if it does not conform to the purport of the delegation, or is disadvantageous to the clients, he may inform the clients of the details thereof and request or recommend the modification of the instructions (see Supreme Court Decision 2001Da32984, Sept. 14, 2001).

According to the records, it is recognized that the Defendant applied for the registration of the first right to collateral security as the representative of the Plaintiff and Jinjin. Moreover, a certified judicial scrivener with regard to registration of the second right to collateral security is a person with professional knowledge and knowledge compared to any other specialized occupation; the first right to collateral and the second right to collateral security are identical to the amount of the secured claim, maximum debt amount, and the debtor and the secured party, except where the obligee was changing the Plaintiff’s address to the Plaintiff; thus, any person could have inferred the same purpose of the second right to collateral security; the first right to the apartment in this case was created by the registration of seizure of the second right after the first right to collateral security was requested by the Plaintiff, and the second right to the apartment in this case was cancelled from the first right to the first right to the first right to the first right and the second right to the second right to the effect that the first right to collateral security was cancelled on behalf of the Plaintiff, etc., and the second right to the first right to the first right to the first right to collateral security and the second right to the first right to the second right to collateral security should not be established.

Applicant, however, the court below rejected the plaintiff's assertion because it cannot be deemed that the defendant has an official duty to recommend the supplementary registration before the first right to collateral security, which affected the conclusion of the judgment on the ground that the court below erred in the misapprehension of legal principles as to the contents of the above circumstances or the official duty of a certified judicial scrivener.

3. Therefore, the judgment of the court below shall be reversed and the case shall be remanded to the court below. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)

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심급 사건
-부산고등법원 2000.10.13.선고 98나10700
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