[Defendant-Appellee] Defendant 1 and 3 others (Attorney Park Jong-soo, Counsel for defendant-appellee)

Defendant 1 and seven others (Attorneys Lee Dong-soo et al., Counsel for the defendant-appellant)

December 12, 2012

Jeju District Court Decision 2010Du3281 Decided May 17, 2012

1. Of the judgment of the court of first instance, the part against the plaintiff corresponding to the money ordered to be paid below shall be revoked.

A. Defendants 1, 2, and Jeju Special Self-Governing Province shall pay 169,56,407 won per annum within the scope of KRW 250,00,00 per annum, and 5% per annum from October 11, 2010 to January 9, 2013, and 20% per annum from the following day to the day of full payment.

B. Defendant 1, Defendant 2, Jeju Special Self-Governing Province and each person, Defendant 1’s attorney-at-law, and Defendant 1’s attorney-at-law, 46,242,656 won per annum within the scope of 68,181,818 won, and 5% per annum within the scope of 68,242,656 won per annum from October 11, 201 to January 9, 2013; and 20% per annum from the next day to the day of complete payment; Defendant 1’s attorney-at-law; Da, the deceased Nonparty 1’s attorney-at-law; Da, the deceased Nonparty 1’s attorney-at-law; and Ma, the deceased Nonparty 1’s attorney-at-law, the amount of 30,454,437 won per annum within the scope of 30,455 won per annum, and 15% per annum from October 11, 2010 to 13.

2. The plaintiff's remaining appeals against the defendants are dismissed.

3. The costs of litigation between the Plaintiff and the Defendants are borne by the Defendants.

4. The portion of payment of the amount under paragraph (1) may be provisionally executed.

The judgment of the first instance court is revoked. The judgment of the plaintiff is revoked. The defendant 1, 2, and Jeju Special Self-Governing Province will pay to the plaintiff the amount of KRW 250,00,000 per annum for KRW 171,025,086 and KRW 169,56,407 per annum from November 25, 2010 to the delivery date of a copy of the complaint, and the amount of KRW 20% per annum from the next day to the full payment date. (b) The amount of KRW 68,181,820 per annum within the scope of KRW 68,181,820 per annum of the defendant deceased non-party 1's lawsuit, KRW 45,45,54,54, and KRW 1, the deceased non-party 1's lawsuit acceptance of the lawsuit, and KRW 169,56,400 per annum, the amount of Jeju Special Self-Governing Province and KRW 254,515.

1. Basic facts

A. The reason why the transfer registration of ownership in the name of Nonparty 2 was completed;

(1) After the non-party 2 married with the non-party 3 and the non-party 4, the non-party 5 died without filing a marriage report at around 1948. The non-party 2 sought the non-party 4 around 1964 and decided to move back to the non-party 4. The non-party 4 was unable to register the non-party 2 on the non-party 5's family register with the non-party 3 and the non-party 4's children, and registered the non-party 2 as his wife, the non-party 3 and the non-party 4's children, the non-party 7's children, the non-party 7's children, the non-party 6 and the non-party 4's children, and the non-party 2 lived with the non-party 4 and the non-party 4's children from that time until August 11, 196.

(2) The non-party 3 died on June 14, 1983. The non-party 2, around December 14, 1994, stated that the non-party 3 was donated the land of this case from the non-party 3 on December 5, 1965 to the non-party 3 pursuant to the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (amended by Act No. 4502, Nov. 30, 1992; hereinafter the "Special Measures Act"), and that the non-party 1, the defendant 2, and the deceased non-party 1 (hereinafter the "the defendant's guarantor") was appointed as the guarantor. The above guarantee was prepared with the statement that "the non-party 2 was donated the land of this case from the non-party 3 on December 5, 1965." However, the defendant heard that the non-party 3 agreed with the non-party 3's other children.

(3) After Nonparty 2 submitted a written confirmation to the Jeju-do North Jeju-gun, the competent authority, and received a written confirmation, Nonparty 2 completed the registration of ownership transfer based on the donation made on June 29, 1995 by Jeju District Court No. 44877, Dec. 5, 1985, pursuant to the Act on Special Measures for the Land of this case.

B. The details of the registration of establishment of neighboring superficies and the registration of creation of superficies under the Plaintiff’s name;

(1) On April 24, 2006, Nonparty 2’s borrower Nonparty 9 provided the instant land as collateral and borrowed money from the Plaintiff. Accordingly, Nonparty 2 concluded a contract on the instant land between the Plaintiff and the Plaintiff on April 21, 2006, the date of which the contract was concluded between the Plaintiff and the Plaintiff on April 21, 2006. Nonparty 2 concluded a mortgage contract and superficies contract between the creditor and the mortgagee, the debtor, the non-party 9, the mortgagee of the right to collateral security and superficies, and the non-party 2, the maximum debt amount of debt amount of KRW 250,00,000. On the same day, Jeju District Court No. 30829, April 24, 2006, the registration of the establishment of a mortgage and the creation of superficies was completed.

(2) On May 11, 2006, the Plaintiff made a simplified appraisal on the instant land, and entered into a loan transaction agreement with Nonparty 9 to KRW 180,00,000 for the loan amount, the loan period from May 11, 2006 to May 11, 2009, at the interest rate of KRW 7% per annum (the above loan period was extended to May 11, 201 by an agreement between the parties).

(3) After that, Nonparty 9 delayed the repayment of the above loan, the principal and interest of the loan (i.e., KRW 171,025,086 as of November 25, 2010) (i.e., principal amount of KRW 169,556,407 as of October 10, 2010 + interest rate of KRW 1,008,047 per annum from October 11, 2010 to November 10, 2010 + KRW 1,008,047 + From November 11, 2010 to November 24, 2010 to KRW 45,247 as of November 24, 2010; KRW 155,000 per annum from the date following that of 10,500 to KRW 15,570 per annum; and KRW 16,575,000 per annum to the Plaintiff.

C. The reason why the registration of ownership transfer in the name of Nonparty 2 and each registration of creation in the name of the plaintiff was cancelled

(1) Nonparty 3 and Nonparty 4’s head of Nonparty 10 filed a lawsuit seeking the cancellation of ownership registration with respect to the non-party 2’s non-party 2’s non-party 2’s non-party 2’s ownership transfer registration of the instant land based on the letter of guarantee prepared falsely by the Defendant guarantor. The registration of the establishment of ownership and the registration of the creation of superficies in the name of the Plaintiff was based on the registration of ownership transfer, and the registration of the establishment of ownership was also based on the registration of ownership transfer, and accordingly, filed a lawsuit seeking the cancellation of ownership registration with respect to the non-party 2’

(2) On October 28, 2008, the above court dismissed all the claims of Nonparty 10. The appellate court ( Jeju District Court 2008Na2371) also dismissed both the appeal of Nonparty 10 and the appeal of Nonparty 10 based on the same claim cause.

(3) On this ground, Nonparty 10 appealed to the Supreme Court Decision 2009Da55686, and the Supreme Court, in light of all the circumstances, was sufficient to doubt that the substantial contents of the alteration of rights in the guarantee form prepared by the Defendant guarantor were not true, and thus, reversed and remanded the above appellate court judgment, deeming that the presumption of alteration of rights in the guarantee form prepared by the Defendant guarantor was reversed. Accordingly, the appellate court (No. 2010Na2015, Jeju District Court) also revoked the above first instance judgment and subsequently revoked the judgment, and subsequently, rendered the entire appellate court (No. 2010Na2015, the lower court revoked the above first instance judgment, and rendered the entire appellate court’s judgment to accept the registration of transfer of ownership in the name of Nonparty 2, the registration of creation of mortgage in the name of the Plaintiff, and the cancellation of the registration of superficies creation. Nonparty 2 appealed to the Supreme Court Decision 2010Da1038

(d) Any other circumstance;

(1) The appraised value of the instant land is KRW 452,436,00 as of September 2, 201.

(2) Payment of other expenses, such as salaries, exit equipment, training and allowances, etc. to the public officials in charge of the affairs of special measures, is not under the jurisdiction of the Ministry of Public Administration and Security, but under the jurisdiction of the Jeju Special Self-Governing Province. Meanwhile, at the time of the preparation of the above letter of guarantee under the Act on Special Measures, the monthly salary of the public officials in charge was under the jurisdiction of the North Jeju Special Self-Governing Province, which was the basic local government at the

(3) The deceased non-party 1 died on November 8, 200, and his heir is the defendant's taking-over of the lawsuit of the defendant's deceased non-party 1, who is the defendant's taking-over of the lawsuit, the defendant's taking-over of the lawsuit of the defendant's deceased non-party 1, who is the deceased non-party 1's taking-over of the lawsuit, the deceased non-party 1's taking-over of the lawsuit, and the deceased non-party 1's taking-over of the lawsuit.

[Ground of recognition] The facts without dispute, Gap evidence Nos. 1 through 18 (including each number), the market price appraisal result of non-party No. 11 of the first instance trial, the fact inquiry result of the party's trial to the Ministry of Public Administration and Security, the purport of the whole pleadings

2. Determination as to the cause of action

(a) Occurrence of liability for damages;

(1) Defendant guarantor’s liability for damages

A guarantor commissioned under the Act on Special Measures has an obligation to perform his/her duties independently, in good faith, and promptly (Article 7 of the Enforcement Decree of the Act on Special Measures). If the guarantor knew that the land in question is not owned by the applicant or was negligent in knowing that the land in question was not owned by the applicant in issuing a certificate of guarantee, the guarantor is liable to compensate for the damages suffered by the person who believed and traded the registration to be true (see Supreme Court Decision 74Da1312, Nov. 12, 1974, etc.).

The above guarantee letter contains that "the non-party 2 was donated the land of this case by the non-party 3 on December 5, 1965, and the defendant's guarantor prepared and signed the above guarantee letter only by the non-party 2's oral statement that he agreed with the non-party 3's other children, and considering the whole purport of oral argument, the documents brought by the non-party 2 did not have any other document than the letter of guarantee and the letter of guarantee stating that the land of this case is owned by the non-party 2. The defendant 1 did not know the non-party 2's guarantor's cultivation relation at the time of issuance of the guarantee letter and it was clear that the non-party 1 was the non-party 2's guarantor's signature and seal, and it was proved that the non-party 3 was not the non-party 1's own owner's own son's own son's own son's own son's own son's own son's own son's own land of this case.

(2) Defendant Jeju Special Self-Governing Province's liability

(A) First, on the premise of the State's liability for compensation, the defendant guarantor is not limited to a person who is in the status of a public official under the State Public Officials Act or the Local Public Officials Act, and the defendant guarantor is widely entrusted with the public service and actually engaged in the public service (see Supreme Court Decision 98Da39060 delivered on January 5, 2001, etc.). In light of the provisions of Articles 7 (2) and 10 (2) of the Act on Special Measures, Articles 6 (1) through (4), 7, and 9 of the Enforcement Decree of the Act, and the above facts, the defendant guarantor is a public official under Article 2 of the State Compensation Act since the defendant guarantor is entrusted with the affairs related to the procedure required for the registration of ownership transfer under the Act on Special Measures and issued the guarantee certificate to non-party 2.

(B) Next, we examine the nature of the work as to the procedure required for the registration of transfer of ownership under the Act on Special Measures and whether Defendant Jeju Special Self-Governing Province is liable to compensate

The former Cadastral Act provides that the State shall investigate and survey the location, lot number, land category, area, boundary, coordinates, etc. of land and register them in the cadastral record (Article 3(1)): Provided, That the head of a Si/Gun, who is the competent authority, shall keep and preserve the relevant cadastral record (Article 2 Subparag. 2 and Article 8), and the Act on Special Measures, shall apply in writing to the competent authority in charge of the head of a Si/Gun who manages the cadastral record, along with a guarantor's guarantee to register the transfer of ownership under the same Act, to the head of a Si/Gun who manages the cadastral record (Article 10 of the Act on Special Measures).

In full view of the above provisions and the above facts, the head of the Si/Gun is in charge of issuing certificates under the Act on Special Measures (see, e.g., Supreme Court Decisions 79Da586, Jun. 26, 1979; 99Da34390, Jul. 10, 2001); and accordingly, the head of the Gun is in charge of issuing certificates under the Act on Special Measures (see, e.g., Supreme Court Decisions 79Da586, Jun. 26, 1979; 9Da34390, Jul. 10, 200) and the head of the Gun is in charge of issuing certificates under the Act on Special Measures, which are related to the registration of transfer of ownership as the competent authority of the land of this case. The head of the Eup/Myeon has commissioned the guarantor of this case related to the issuance of certificates and the appointment of suretys incidental thereto. Thus, it is reasonable to view that the affairs of issuing certificates and the affairs incidental thereto are inherited by the government of the so-called local government.

Meanwhile, Article 6 (1) of the State Compensation Act provides that "If the State or a local government is liable for damages, a person who is responsible for the appointment and supervision of a public official or for the construction and management of a public institution, and a person who is responsible for the expenses of the construction and management of a public institution shall compensate for damages to the person who bears the expenses unless the person is the same." "the salary, salary, and other expenses of a public official" under Article 6 (1) of the State Compensation Act means all the expenses necessary for the relevant affairs, not only the personnel expenses of public officials, but also the expenses of public officials. At least the person who has spent such expenses externally includes a person who bears such expenses even if the head of a local government is not the actual and extreme person responsible for the expenses. In the event that the head of a local government performs the national administrative affairs delegated by an institution, the local government is a person who externally disbursed the expenses incurred in the affairs, and in such case, the local government is liable for damages due to the tort of a public official under Article 6 (1) of the State Compensation Act (see, 3. 1).

In light of the above legal principles, the Defendant Special Self-Governing Province and the Defendant Special Self-Governing Province are obligated to compensate the Plaintiff for the damages incurred by the Defendant’s tort, which is the private person entrusted with the relevant public duties pursuant to Article 6(1) of the State Compensation Act, as a person who bears the burden of duties, such as issuing

(3) Defendants’ liability for damages

Therefore, the defendant guarantor issued a false certificate of guarantee by negligence as mentioned in the above (1). Since the letter of guarantee is one of the supporting documents for registration and the registration of transfer of ownership was made in the non-party 2, it is liable for damages suffered by the plaintiff who entered into a loan contract with the belief that the above registration is true, and the defendant Jeju Special Self-Governing Province also is liable for compensation for damages suffered by the plaintiff as a person who bears the burden of expenses entrusted by the agency pursuant to Article 6 (1) of the State Compensation Act, and

(b) Scope of damages;

The plaintiff's ordinary damages suffered by the plaintiff due to the plaintiff's trust in the registration of ownership transfer in the non-party 2's non-party 2's trust in the registration of ownership transfer and the cancellation of the registration of ownership transfer after the loan was made is equivalent to the amount loaned by the plaintiff within the limit of the maximum debt amount within the limit of the value of the land of this case, which is the object of the right to collateral security, within the limit of the maximum debt amount. The above value of the real estate should be based on the time when the execution of the right to collateral security would have been expected if the right to collateral security was effective or at the time of the conclusion of arguments in the lawsuit for damages (see Supreme Court Decision 98Da27623, 27630, Apr. 9, 199, etc.). Since the market value of the land of this case is equivalent to the amount of the above 452,436,000 won as of September 2, 201, the market value of the land of this case shall be equivalent to the above maximum debt amount.

Therefore, Defendant guarantors and Defendant Jeju Special Self-Governing Province have the obligation to pay to each Plaintiff the principal of the loan as of October 10, 2010, the amount of KRW 169,556,407, and damages for delay from October 11, 2010, which is the following day of the above base date, to the full payment period, within the maximum of KRW 250,00,000,00 per annum, and as of October 24, 2010 (the Plaintiff further sought interest rate of KRW 7% per annum and interest rate of KRW 15% per annum for the period from October 11, 2010 to November 24, 2010, as long as the grounds for the Defendants’ responsibility are tort liability, it cannot be claimed for the payment of interest exceeding the interest rate under civil law court).

3. Determination as to the defendants' defense of extinctive prescription

The Defendants asserted that, on June 29, 1995, Nonparty 2 completed the registration of ownership transfer on the instant land, the lawsuit of this case, which is the cause of completing the registration of ownership transfer based on a tort, was filed after the lapse of 10-year extinctive prescription period from the date the above registration was completed, which is the initial date of the extinctive prescription period, the Plaintiff’s right to claim damages against

In the case of damage claim based on an illegal act at an interval of time between the harmful act and the actual damage occurred, the meaning of "the date when the illegal act was committed", which is the starting point of the extinctive prescription, shall be deemed as the time when it can be deemed that the damage that exists only in a conceptually and dynamic state was realized thereafter (see Supreme Court Decisions 88Da25168, Jan. 12, 1990; 2007Da36445, Jun. 12, 2008; 2007Da3645, Mar. 24, 2011; and therefore, the above plaintiff's obligation to cancel the registration of the establishment of the above mortgage was finalized as the judgment against the plaintiff against the plaintiff on March 24, 201, which is the date when the judgment against the plaintiff was finalized, should be cancelled only when the judgment against the plaintiff became final and conclusive, and therefore, the defendants' defense of the extinctive prescription in this case has not been clear in its reasoning.

4. Conclusion

Therefore, Defendant 1, Defendant 2, Jeju Special Self-Governing Province within the scope of KRW 250,00,00, KRW 169,56,407 above and KRW 167 per annum from October 11, 2010 to KRW 5% per annum under the Civil Act until January 9, 2013; and KRW 20 per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the full payment date; KRW 50 per annum from KRW 250,00, KRW 150, KRW 400 per annum from the 25th day after the 1st 5th 6th 6th 5th 6th 6th 6th 6th 6th 6th 10, KRW 181,00 per annum from the 1st 1st 5th 6th 6th 15th 206 x 166th 15 6th 265 x 1665 x 15th 1.

Therefore, the plaintiff's claim against the defendants shall be accepted within the scope of the above recognition and the remaining claims shall be dismissed as without merit. Since the part against the defendants in the judgment of the court of first instance against the plaintiff as to the above recognition money is unfair with different conclusions, each of them shall be revoked and the defendants shall be ordered to pay the above recognition money to the plaintiff, and the remaining appeal against the defendants shall be dismissed in its entirety as it is without merit. It is so decided as per Disposition.

Judges Lee Jin-Gyeong (Presiding Judge)