2017Na50648 Loans

A

Attorney Lee Do-young

[Defendant-Appellant] Defendant 1 and 3 others

Attorney Park Do-young

Ulsan District Court Decision 2016Gahap680 Decided November 23, 2016

March 8, 2018

March 29, 2018

1. The part against the defendant in the judgment of the first instance shall be revoked;

2. The plaintiff's primary claim is dismissed.

3. The plaintiff's conjunctive claim added by this court is dismissed.

4. Of the total costs of litigation, the part arising between the Plaintiff and the Defendant is borne by the Plaintiff.

1. Purport of claim

In the first instance trial, the Defendant jointly and severally with Co-Defendant C and D pay to the Plaintiff 200 million won with 25% interest per annum from December 24, 2010 to the day of full payment. Preliminaryly, the Defendant shall pay to the Plaintiff 200 million won with 25% interest per annum from December 24, 2010 to the day of full payment (the Plaintiff added a preliminary claim at the trial).

2. Purport of appeal;

The part against the defendant in the judgment of the first instance shall be revoked. The plaintiff's claim shall be dismissed.

1. Determination on the legitimacy of a subsequent appeal

A. Summary of the parties' assertion

1) The defendant's assertion

The defendant was not aware of the fact that the lawsuit was filed because he was unable to receive the litigation documents, including the duplicate of the complaint of this case, and the authentic copy of the judgment of the court of first instance, and that the judgment of the court of first instance was pronounced on January 12, 2017.

Therefore, the Defendant was unable to observe the final appeal against the judgment of the first instance due to a cause not attributable to the Defendant, and the instant final appeal was filed within two weeks from January 12, 2017, on which the cause ceases to exist, and thus, the instant final appeal is lawful.

2) The plaintiff's assertion

In a case where the defendant or the person living together with the defendant received the documents of lawsuit, such as a duplicate of the complaint of this case, notice of the sentencing date, and original copy of the judgment, etc. at his domicile on the defendant's resident registration, the defendant's failure to file an appeal within the appeal period does not constitute a case where the defendant could not have complied with the appeal period due to any cause not attributable

B. Determination

1) In the case of an appeal for subsequent completion, the reason for subsequent completion ought to be proved unless the existence of the reason for subsequent completion is the fact of public notice or obvious fact to the court, so the person filing an appeal for subsequent completion is unable to comply with the peremptory term of the appeal due to any cause not attributable to himself/herself, and he/she filed an appeal which has been negligent within two weeks after such cause ceases to exist. The assertion and proof of the fact that this constitutes the requirement of lawsuit, and the court shall deliberate ex officio (see Supreme Court Decision 2000Da21222, Jan. 30, 2001).

On the other hand, the service in civil procedure shall be made by delivering a certified copy or duplicate of the document to the person to whom the service is to be made (Article 178(1) of the Civil Procedure Act). If the person to be served is not present at the place of service other than the working place, the document may be delivered to the person who is man of sense as a member of the company, employee, or cohabitant (Article 186(1) of the Civil Procedure Act). In addition, a person living together with the same household as the person who actually lives together with the same household as the person who is in a relationship with the person to be served with the same household as the person who actually lives together with the same household, it is sufficient to have legal relations or does not necessarily belong to the same household on the resident registration, and there is no temporary living relationship (see Supreme Court Order 2000Ma5732, Oct. 28, 200).

2) The following facts may be recognized by the purport of each period of evidence in this Court or of Nos. 10 to 12 and all pleadings.

A) On May 16, 2016, the court of the first instance served the copy of the instant complaint on the 66-1, the Hag-gun, the domicile of the Defendant in the Defendant’s resident registration.

B) At the time, the F received the copy of the complaint, and the F was the wife of the Defendant, and the F was living together with the same household as C. At the time of service of the copy of the complaint of this case, C was residing in Ulsan-gun*, Ulsan-gun* at 0,00 G-ro 9,00 0 (00 apartment).

C) Since then, both copies of the preparatory documents submitted by the Plaintiff in the first instance trial and the first instance trial notice, notice of the sentencing date, and original copy of judgment were served as a main owner on the Defendant’s resident registration. At the time, the above documents were received by F or H. Meanwhile, the notice of postal service prepared by H at the time of receipt of the above documents were sent by the Defendant’s penal number, but there is no ground to view that H is erroneous, and that H is a same livelihood with the same household as the Defendant.

D) On January 13, 2017, the Defendant received an authentic copy of the judgment of the first instance court, and submitted the instant written appeal on January 23, 2017.

3) In light of the facts established above, documents such as a copy of the complaint of this case, notice of the date of pleading, notice of the date of pleading, notice of the date of judgement, and original copy of judgment, etc. are served on F and H rather than the defendant's live-in partner. Thus, the service of the above documents is unlawful unless there is any separate ground to deem F and H to have the authority to receive them. Thus, the defendant could not be able to observe the period of appeal, which is a period of unexplosion, due to the failure to know the progress and result of the lawsuit of this case due to a cause not attributable to the defendant. After that, the defendant obtained the authentic copy of the judgment of the first instance court as above, and issued the authentic copy of the judgment of this case on January 23, 2017

2. Basic facts

A. On March 12, 2010, C borrowed KRW 210 million (hereinafter “the loan of this case”) with the term “interest rate of 3% per month from the Plaintiff, 3% per month, 6 months from the date of repayment loan, and 12 days per month from the date of payment of interest.”

B. C, at the time of borrowing the instant loan from the Plaintiff (hereinafter referred to as “the instant loan certificate”), the name of the surety and the Defendant, D, and the name of the surety and the Defendant, are printed in each of the vice characters, and the name of D and the Defendant is affixed by each of the vice characters. On the other hand, D are children of C, and the Defendant is the co-born of C.

C. On March 16, 2010, in order to secure C’s loan obligation of this case, a written contract to establish a collateral (hereinafter “written contract to establish a collateral”) with respect to the land and the building owned by the Defendant, Ulsan-do, U.S., U.S., 502-3, which provides that the Defendant shall set up the collateral (hereinafter “written contract to set up a collateral”) with the Plaintiff. The above written contract to set up a collateral is written as D and the Defendant’s joint debtor, and the seal is affixed to D and the Defendant’s name. On the other hand, the part of the “joint debtor” among the aforementioned written contract to set up a collateral agreement is written as different from the word “B” written as stated above.

Facts without dispute over the basis of recognition, Gap evidence 1, 2, Gap evidence 3-1, 2-2, and the purport of the whole pleadings

3. The parties' assertion and judgment

A. As to the primary argument

1) The plaintiff's assertion

A) At the time when the Plaintiff lent the instant loan to C, the Defendant affixed the instant loan certificate as a joint and several surety, or at least granted C the authority to execute a joint and several surety contract for the instant loan.

B) Even if the Defendant did not have the power to act on behalf of the Defendant to jointly and severally guarantee the instant borrowed money, the Defendant provided C with his/her seal impression, identification card, and certificate of personal seal in connection with the loan, and thus, C had the right to act on behalf of the Defendant, and the Defendant prepared a power to act on behalf of the Defendant in the process of establishing a right to act on behalf of the Defendant to secure the instant borrowed money on his/her own property. In light of the above, there was a justifiable reason to believe that C was the right to act on behalf of the Defendant as a joint and several surety for the instant borrowed money.

2) The defendant's assertion

In addition, the defendant did not affix his seal to the loan certificate of this case and did not consent to the conclusion of joint and several sureties contract of this case.

3) Determination

A) As to whether the Defendant’s seal affixed to the Defendant’s name at the time of preparing the loan certificate of this case, or C affixed the Defendant’s seal to the Defendant’s column for the annual obligor of the loan certificate of this case upon obtaining a lawful delegation of authority from the Defendant

In light of the purport of the entire pleadings in the statement No. 9, there is no evidence to deem that the Defendant’s name affixed the seal at the time of the preparation of the instant loan certificate, and instead, in full view of the purport of the argument in the statement No. 9, C affix the seal of the Defendant, which was kept in custody next to the Defendant’s name, out of the loan certificate of this case, and for this reason, Ulsan District Court Decision 2017No584, May 10, 2017, which was prosecuted for the crime of forging private document, and the said judgment became final and conclusive.

Therefore, at the time of the preparation of the loan certificate of this case, the plaintiff must prove that C obtained a legitimate proxy certificate from the defendant and affixed the seal in the column for joint and several liability of the defendant in the loan certificate of this case. Even if the defendant prepared and awarded a proxy certificate to C in the process of preparation of the mortgage creation contract of this case as the plaintiff's assertion, it is only a ground for recognizing that the defendant entrusted C with the authority to establish the right to the real estate under his/her name, and it cannot be deemed that the defendant granted the right to represent the joint and several liability under the loan certificate of this case or the conclusion of the joint and several liability contract of this case. It is insufficient to recognize it only by the descriptions of Gap evidence 2, Eul

Therefore, this part of this part is without merit of the plaintiff.

B) As to the statement of expression by proxy under Article 126 of the Civil Act

In light of the following facts and circumstances, even if C had the Defendant’s seal imprint, it is difficult to deem that there is a justifiable reason to believe that C had the right to enter into a joint and several liability contract on behalf of the Defendant at the time of the preparation of the loan certificate of this case, and that the Plaintiff had the right to enter into a joint and several liability contract on behalf of the Defendant, as a matter of course (see Supreme Court Decision 2008Da42195, Sept. 25, 2008). (See Supreme Court Decision 2008Da42195, Sept. 25, 2008).

Therefore, the plaintiff's assertion on this part is without merit.

① At the time of drawing up the loan certificate of this case, C does not have the right to represent the Plaintiff as to the conclusion of the joint and several guarantee or joint and several debt contract of this case.

② In the column for joint and several liability for the instant loan certificate, the name and address of the Defendant were printed in the same word, instead of the name and address of the Defendant, and the Defendant was the same as the principal debtor C, and was in a position to easily hold the Defendant’s seal. As such, the Plaintiff appears to have been a general seal, not a seal affixed to the instant loan certificate, even though it is probable to suspect that the Defendant’s seal affixed with the instant loan certificate was forged by C, the Plaintiff appears to have been the Defendant’s seal affixed with the instant loan certificate.

It was not confirmed separately as to whether it was awarded.

③ It is entirely different from the Defendant’s establishment of a right to collateral security on the real estate owned by the Defendant and the Defendant’s joint and several liability for the loan loan debt, and according to the evidence Nos. 3-1 and 2 of the evidence No. 3-2, in the real estate provided by the Defendant as a real security for the loan loan debt of this case, prior collateral security has already been established, and it seems that no collateral value has been assessed. In such a situation, the Plaintiff was required to pay special attention to the fact that the Plaintiff granted the right of representation to enter into a joint and several surety or joint and several liability contract of this case on the loan of this case.

④ As seen earlier, C was indicted on the charge of violating the part of the Defendant’s name among the loan certificates of this case and sentenced to conviction, and the judgment became final and conclusive.

B. As to the conjunctive argument

1) The plaintiff's assertion

On March 16, 2010, the Defendant stated that the contract to establish a mortgage concerning the real estate owned by the Defendant was prepared at the time of the establishment of the right to collateral security and affixed a seal and affixed a seal to the Defendant himself/herself, and affixed a seal to the confirmation document. As the obligor under the contract to establish a collateral security, the Defendant, as the obligor under the written contract to establish a collateral security, must perform the Plaintiff’s obligation.

2) Defendant’s assertion

There is no burden of the Defendant on the part of the preparation of the agreement on the establishment of the mortgage of this case. The part of the obligor holding concurrent office is arbitrarily recorded by the third party.

3) Determination

In light of the following circumstances acknowledged as above, Gap evidence Nos. 1, 2 and Eul evidence Nos. 9, 16 and the whole purport of the pleadings, i.e., the part in the name of the defendant among the loan certificates of this case which was forged by the defendant, and there was no involvement in the preparation of the loan certificates. ② The remainder of the terms in the contract of this case were printed in the same letter, but all of the remaining terms were stated in several ways, which appears to be different from the defendant's body. ③ The part of the contract of this case, which was written in the letter of the contract of this case, seems to be different from the defendant's body, ③ The contents of the debtor's debt did not separately specify the debtor's debt in addition to the defendant's liability for warranty, ④ The defendant did not separately specify the defendant's obligation to establish the real estate in addition to the defendant's possession of real estate. Thus, the defendant's assertion that the remaining part of the contract of this case's establishment of joint and several liability is not sufficient.

4. Conclusion

Therefore, the plaintiff's primary claim against the defendant and the conjunctive claim added by this court shall be dismissed as it is without merit. Since the part against the defendant in the judgment of the court of first instance is unfair with different conclusions, the part against the defendant in the judgment of the court of first instance which accepted the defendant's appeal and revoked the part against the defendant in the judgment of the court of first instance, dismissed the plaintiff's primary claim against the defendant, and the plaintiff's primary claim added by this court is dismissed as shown in the Disposition

Do-type (Presiding Judge)

Kim Shin-type

Freeboard Jina