Kim Jong-tae (Attorney Song-young et al., Counsel for the plaintiff-appellant)

Postal Service (Attorney Kim Byung-chul, Counsel for the defendant-appellant)

May 18, 2006

Cheongju District Court Decision 2005Gahap647 Decided September 9, 2005

1. The part of the judgment of the court of first instance against the plaintiff shall be revoked.

2. The defendant's notary public against the plaintiff is not allowed to enforce compulsory execution by the notarial deed of debt repayment contract No. 14275 prepared on December 31, 2004 by the Seowon Law Firm dated December 31, 2004.

3. The total costs of the lawsuit shall be borne by the defendant.

1. Purport of claim

A. The defendant's notary public against the plaintiff is not allowed to enforce compulsory execution by the notarial deed of debt repayment contract (Quasi-Loan for Consumption) No. 14275 of December 31, 2004, 2004 by the defendant's notary public against the plaintiff.

B. As to the liability for damages against the defendant for the demotion 76,290,380 won, it is confirmed that the plaintiff's joint and several surety obligation against the defendant on December 31, 2004 against the defendant does not exist (the part of the claim for confirmation of non-existence of the obligation was excluded from the scope of the trial for the first instance because the defendant did not appeal).

2. Purport of appeal

The part against the plaintiff in the judgment of the court of first instance shall be revoked. The defendant's notary public against the plaintiff shall be disqualified from compulsory execution by the deed of debt repayment contract No. 14275 of December 31, 2004 (Quasi-Loan for Consumption) signed by the defendant on December 31, 2004.

1. Basic facts

On December 31, 2004, the Defendant entered into a contract with the Defendant to borrow KRW 37,500,000 from the Defendant at the maturity of two years after the maturity of two years (hereinafter “the instant loan contract”).

After preparing a cash loan certificate stating the above contents on the same day, the defendant and the tuition shall pay the above loan money in installments from January 24, 2005 to December 24, 2006 by a notary public, which shall be paid in installments from January 24, 2005 to December 24, 2006. In the event that the above payment is delayed, a notarial deed stating that there is no objection even if it is immediately enforced execution (hereinafter referred to as the "notarial deed of this case"). The plaintiff signed and sealed the notarial deed of this case as a joint and several surety under the notarial deed of this case on the same day.

[Ground of recognition] Evidence No. 1, testimony for a witness for the first instance trial, the purport of the whole pleadings

2. The parties' assertion and judgment

A. The plaintiff's assertion

The Plaintiff borrowed KRW 37,50,000 from the Defendant, and signed and sealed the instant notarial deed as a joint guarantor in order to guarantee the above loan obligation. However, the Defendant’s claim on the instant notarial deed is KRW 37,50,000,000,000,000 against the Defendant of the notarial deed. If the Plaintiff was aware that the obligation on the notarial deed of this case is the existing obligation on the notarial deed of this case, the Plaintiff did not stand joint and several liability. The Defendant’s signing and sealing on the notarial deed of this case is revoked by deceptive act or mistake of the notarial deed of this case.

B. Determination

(1) In full view of the evidence Nos. 1 through 3-2, evidence Nos. 1 and 3-2, evidence Nos. 1 and 2, each entry of evidence Nos. 2, the lectures of witnesses at the court of first instance, well-known, and the purport of the testimony and the whole pleadings of the witnesses at the court of first instance, the following facts are recognized:

From July 2004, the Defendant operated the “Blue House Business Office” of two vehicles, and the use of the automobile was from the beginning of December 2004 to the business members of the said business office.

On December 9, 2004, the Defendant subrogated for KRW 14,550,00 for the obligation to pay for the right of wrong use to the Defendant. On December 15, 2004, the Defendant borrowed KRW 18,104,70 from the Defendant on December 20, 204, the amount of KRW 5,000 for the above-mentioned bond issued to the Defendant on December 4, 200 for the above notarial deed (the sum of the existing obligation to the Defendant on the notarial deed was KRW 14,50,000 for the above notarial deed, + KRW 18,104,700 for the notarial deed) to the Defendant on December 15, 200 for the above notarial deed to be issued by 30,000 for the above notarial deed, and the Defendant was obligated to receive KRW 70,000 for the above notarial deed from 30,000,000 for the loan to the Defendant on the notarial deed.

The Plaintiff, who had been residing in the court due to the occurrence of damages, was entitled to receive the reimbursement of KRW 20 million,00,000,000,000 from the Defendant to obtain the reimbursement of KRW 37,50,000,000,000,000 from the Defendant, and was asked the Defendant to receive the reimbursement of KRW 20,000,000,000,000, and signed and sealed the instant notarial deed as a joint guarantor on the instant notarial deed. While the notarial deed was requested to provide a guarantee to the notarial deed of this case, the notarial deed was refused because the notarial deed was not received KRW 20,00,000,00,000,000, which was lent to the notarial deed before the preparation of the notarial deed of this case. The Plaintiff, upon receiving the reimbursement of KRW 20,000,000,00,00,00,00

At the time of the preparation of the notarial deed in this case, the Defendant did not finite the Plaintiff with the fact that the obligation under the notarial deed in this case is KRW 37.5 million, which is an existing obligation, and the Plaintiff was unaware of the said circumstances.

The No. notarial deed of this case states that the title is “a notarial deed of a contract for debt repayment (quasi-loan)” but the attached “cash” states that “cash loan shall be borrowed at interest rate of 37.5 million won to the defendant and the repayment period shall be two years in principle,” and there is no indication as to the details of the claim, such as the existing amount of indemnity, etc.

(2) According to the above facts, the plaintiff signed and sealed the notarial deed in this case as a joint guarantor with the intent to guarantee the obligation of 37.5 million won to be borrowed from the defendant. However, unlike the plaintiff's intent, the notarial deed in this case was a quasi-loan contract for consumption with respect to the existing obligation of indemnity against the defendant against the defendant, and thus the plaintiff's signature and seal act of signing and sealing the notarial deed in this case is caused by mistake. And the above mistake of the plaintiff constitutes an error with respect to the important part of the contents of the juristic act. The plaintiff's declaration of intent to guarantee the obligation such as the indemnity amount in this case was legally revoked on December 15, 2005, on which the defendant's declaration of intention to cancel the notarial deed in this case was delivered to the defendant. Compulsory execution by the

3. Conclusion

The plaintiff's claim is justified. Since the judgment of the court of first instance differs from this conclusion, the part against the plaintiff in the judgment of the court of first instance shall be revoked, and the plaintiff's claim shall be accepted. It is so decided as per Disposition.

Judges Kim Jong-dae (Presiding Judge)