Whether a notary public is presumed to have made the authenticity of a deed signed by a notary public (affirmative)

The authentication system for a deed signed by a private person provided for in the Notary Public Act means that a notary public makes the parties concerned sign or affix a seal on a deed signed by a private person in front of a notary public, or has the parties concerned or their agents confirm the signatures or seals on a deed signed by a private person and enters such fact in the deed (Article 57(1) of the Notary Public Act). In case where a notary public gives an authentication for a deed signed by a private person, the authentication system stipulated in the Notary Public Act requires prior procedures for the confirmation of a client (Article 27) or the confirmation of a client (Article 30) and the certification of his/her right of representation (Article 31) in accordance with the Notary Public Act. Thus, unless there are special circumstances, it is presumed that a notary public establishes the authenticity of a deed signed by a private person in the authentication of a deed signed by a private person

Articles 27, 30, 31, and 57 (1) of the Notary Public Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Han, Attorneys Park Jong-soo and 2 others, Counsel for plaintiff-appellant)

Claimant

Other party (Law Firm Doz., Attorneys Han Pung-soo et al., Counsel for the plaintiff-appellant)

Suwon District Court Order 2007BB51 dated November 4, 2008

The part of the order of the court below against the other party is reversed, and that part of the case is remanded to Suwon District Court Panel Division. The appellant's reappeal is dismissed.

The grounds of reappeal are examined.

1. As to the grounds for reappeal of the other party

The authentication system for a deed signed by a private person provided for in the Notary Public Act is stipulated in the notary public Act as follows: (a) a notary public makes the party concerned sign or affix a seal on a deed signed by a private person in front of a notary public, or has the party concerned or his agent confirm the signature or affix a seal on a deed signed by a private person and then enters the fact in the deed (Article 57(1)); (b) a notary public makes authentication for a deed signed by a private person subject to the procedures for the confirmation of the client (Article 27) or the confirmation of the client (Article 30) and the certification of his/her right of representation (Article 31) in advance pursuant to the Notary Public Act; and (c) barring special circumstances, such as where a notary public asserts and proves that a notary public did not go through the said procedures in authentication for a deed signed by a private person, the authenticity of a deed signed by a notary public is presumed to have been established (see, e.g., Supreme Court Decisions 87Meu148, Mar. 8, 198882; 99Da16, Jul.

According to the records, on October 26, 2004, the claimant and the other party shared consultations. On February 1, 2005, the other party as the representative of the claimant, prepared the agreement of this case that "the other party pays 70,000,000 won to the claimant's property division and consolation money to the other party" and authenticated by a notary public in the non-party law firm, the other party remitted 70,000 won to the claimant on February 1, 2005, and the above notary public did not assert and prove that the notary public did not properly go through the procedures prescribed by the Notary Public Law in certifying the agreement of this case (According to the record attached to the record, the above notary public is deemed to have acknowledged the right of representation, etc. by requesting the other party to submit a certificate of personal seal impression pursuant to Article 31 of the Notary Public Law Firm Act, and further, the agreement of this case is concluded after the divorce is formed, and one party is paid to the other party without any justifiable reason.

Therefore, the authenticity of the agreement of this case is presumed. Nonetheless, the court below's rejection of the other party's defense on the ground that the agreement of this case cannot be deemed to have been made in accordance with the claimant's genuine intent is erroneous in the misunderstanding of legal principles as to the formation of the document's authenticity, which affected the conclusion of the judgment, and the ground of reappeal

2. As to the ground for reappeal by the appellant

As seen earlier, the instant petition for a trial is reversed to the purport that it is unlawful. As such, the grounds for reappeal by the claimant cannot be accepted without further review.

3. Conclusion

Therefore, the part of the order of the court below against the other party shall be reversed, and that part of the case shall be remanded to the court below for a new trial and determination. The reappeal by the claimant shall be dismissed. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yang Chang-soo (Presiding Justice)