[1] Whether a notarial deed prepared by commission of an unauthorized representative has an executory power (negative)

[2] The method of ratification of a notarial deed which has a defect of power of representation

[1] The indication of the recognition and recognition of execution that a notarial deed allows the executory power as a title of debt is an act of litigation against a notary public, so when a notarial deed is prepared by the commission of an unauthorized representative, it shall not be effective as a title of debt.

[2] The declaration of intent of recognition of execution on a notarial deed is the litigation by a notary public as the sole declaration of intent by the debtor against the joint law office or notary public, which was made by the method of sexual rule. Thus, the declaration of intention of ratification on the recognition of execution among notarial deeds defective as well as by a notary public who prepared the notarial deed should make it a notarized method to the joint law office or notary public. Thus, as long as there is ratification without such method, the title of debt cannot be made effective, regardless of the fact that the debtor bears the obligation under the substantive law.

[1] Article 130 of the Civil Act, Article 89 of the Civil Procedure Act, Article 56 subparagraph 4 of the Civil Execution Act / [2] Article 132 of the Civil Act, Article 56 subparagraph 4 of the Civil Execution Act

[1] Supreme Court Decision 82Da1758 delivered on June 26, 1984 (Gong1984, 1279) Supreme Court Decision 2000Da45303, 45310 Delivered on February 23, 2001 (Gong2001Sang, 740) Supreme Court Decision 2001Da64486 Delivered on May 31, 2002 / [2] Supreme Court Decision 90Da20473 Delivered on April 26, 1991 (Gong191, 1497)

[Defendant-Appellee] Plaintiff 1 and 2 others

Defendant (Attorney Ahn Jae-sik, Counsel for defendant-appellant)

Busan District Court Decision 2005Na6553 delivered on December 15, 2005

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

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. According to the reasoning of the judgment below, the court below rejected the plaintiff's non-party 1's non-party 2's claim that the non-party 4 was affixed to the non-party 2's non-party 1's debt and the non-party 2's debt-backed debt-backed debt-backed debt-backed loan 1's 4th of 00 and the non-party 2's debt-backed debt-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-backed loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan-related loan.

2. However, it is difficult to accept the judgment of the court below for the following reasons.

A. The indication of recognition of execution that a notarial deed allows a notary public to have executory power as a title of debt is an act of litigation against a notary public. Thus, when a notarial deed is prepared by a commission of an unauthorized representative, it is not effective as a title of debt (see Supreme Court Decision 2000Da45303, 45310, Feb. 23, 2001).

However, according to the records, if Nonparty 1 borrowed a large amount of bonds from several bond holders within a relatively short period from July 2003 to May 2004 to obtain a certificate of personal seal impression issued under the name of the Plaintiff when the bond holders demand joint and several bonds, and it was difficult for the Plaintiff to obtain a certificate of personal seal impression as joint and several surety for the loan obligations without the Plaintiff’s consent. The Defendant, among such bond holders, was able to know the fact that the Plaintiff borrowed 10 million won to Nonparty 1 for the above period from November 15, 2003 to February 28, 204, which was hard to find out that the Plaintiff used to request the Plaintiff to prepare the certificate of personal seal impression as well as the Plaintiff’s previous certificate of personal seal impression issued by Nonparty 1 for the first time on the loan to Nonparty 2. However, it is difficult to readily conclude that the Plaintiff used the certificate of personal seal impression to request the Plaintiff to use the certificate of personal seal impression affixed to Nonparty 1 for the first time.

Nevertheless, the judgment of the court below that the plaintiff granted the right of representation to the non-party 1 regarding the conclusion of a joint and several guarantee contract under the name of the plaintiff and the entrustment of the preparation of the notarial deed of this case is erroneous in the misapprehension of the rules of evidence and affected the conclusion of the judgment

B. In addition, an expression of intent of recognition of execution on a notarial deed is an act of litigation by a notary public as a sole declaration of intent by the debtor against a joint law office or notary public, which is made in accordance with the procedure of sexual rule, and thus, a notary public who prepared the notarial deed in question must make it a notary public in a notarized manner against a joint law office or notary public. Thus, as long as there is ratification without such a method, the title of debt cannot be valid even though the debtor bears the obligation under the substantive law (see Supreme Court Decision 90Da20473 delivered on April 26, 191). Thus, even if the plaintiff sent a text message to the defendant to repay the debt of this case as acknowledged by the court below, it cannot be deemed that there was an expression of intent of ratification as to an recognition of execution among notarial deeds which lack the right of representation.

Nevertheless, even if the notarial deed of this case was prepared by the commission of the unauthorized Representative, the court below held that the plaintiff ratified the joint and several liability in the notarial deed of this case made by the Unauthorized Representative on the grounds as stated in its reasoning. It erred by misapprehending the legal principles on the ratification of the recognition of execution in the notarial deed made by the commission of the Unauthorized Representative, which affected the conclusion of the judgment. Thus, the ground of appeal assigning this error has merit

3. Conclusion

Therefore, the judgment of the court 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 Kim Young-ran (Presiding Justice)