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(영문) 서울고등법원 2009. 7. 24. 선고 2009나20316 판결
[약정금등][미간행]
Plaintiff, Appellant and Appellant

Plaintiff (Law Firm B case, Attorneys Lee Jong-hwan et al., Counsel for plaintiff-appellant)

Defendant, appellant and appellee

Defendant (Attorney Lee Young-young, Counsel for defendant-appellant)

Conclusion of Pleadings

May 15, 2009

The first instance judgment

Seoul Central District Court Decision 2008Gahap62149 Decided January 13, 2009

Text

1. The part against the defendant in the judgment of the court of first instance, which exceeds the amount ordered to be paid under the following, shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed

The defendant shall pay 47,600,000 won to co-defendant 1, 2, and each of them.

2. The defendant's remaining appeal and the plaintiff's appeal are all dismissed.

3. Of the total litigation costs, 60% is borne by the Plaintiff, and 40% is borne by the Defendant.

Purport of claim and appeal

1. Purport of claim

The defendant shall pay 19,00,000 won to co-defendant 1, 2, and each of them.

2. Purport of appeal

A. The part against the defendant in the judgment of the court of first instance that ruled against the plaintiff corresponding to the amount ordered to be paid below shall be revoked. The defendant shall pay to the plaintiff KRW 47,600,000 per co-defendant 1 and 2 of the judgment of the court of first instance and each of them.

B. Defendant: The part against the Defendant in the judgment of the first instance is revoked, and the Plaintiff’s claim corresponding to the above revocation is dismissed.

Reasons

1. Quotation of judgment of the first instance;

The reasons why the court should explain the instant case,

① According to Section 10 of the judgment of the first instance court, “the ownership of the Defendant company” was added to “the ownership of the Defendant company (the purchase was made around January 8, 2007, but the registration of ownership transfer was not completed).”

② On February 7, 2007, the 3rd page “as to the instant real estate to the Plaintiff on February 7, 2007,” is dismissed as “as to the instant real estate on February 7, 2007, the mortgagee of the right to collateral security on the same day as the registration of the transfer of ownership was completed,” and

3. Sub-section 4 of the 7th page "No. 2-3" with "No. 2-1, 2, and 3";

(4) On the 7th page, the following judgments shall be added:

【Additional Judgment】

The defendant asserts that the registration certificate, i.e., the certificate of cancellation of the right to collateral security when a person who created the right to collateral security and the debtor submitted the documents establishing the right to collateral security to a certified judicial scrivener upon delegation of cancellation of the right to collateral security, is ordinary registration practices. However, there is no evidence to acknowledge that the plaintiff comprehensively delegated the right to cancel the right to collateral security. Furthermore, even if there is no such a practice, it is against the law. Thus, the defendant's assertion is without merit since Article 25 of the former Certified Judicial Scriveners Act (amended by Act No. 8920 of March 21, 2008) is a practice contrary to the law.

In addition, even if the Plaintiff did not delegate the right to cancel the establishment registration of the instant mortgage to the Defendant Company, the Plaintiff expressed his/her intent to grant the right of representation by keeping the documents establishing the right of representation to the Defendant Company, which was the founder of the instant mortgage. After that, the Defendant’s co-defendant 2, the representative director of the first instance court, delegated the cancellation of the right of representation while issuing the documents establishing the right of representation to the Plaintiff, and Nonparty 1’s employee Nonparty 2, who was introduced by the Defendant as the Plaintiff from Co-Defendant 2 in the first instance trial, confirmed his/her intent to cancel the establishment registration of the instant mortgage. In light of the legal principles of expression agent, the Defendant, who trusted his/her intent to grant the right of representation, cannot be deemed to have been entrusted with the cancellation of the establishment registration of the instant mortgage by the Plaintiff as the mortgagee. In this case, the Defendant’s co-defendant 2, who was the obligor of the instant mortgage, arbitrarily delegated the cancellation of the establishment registration of the instant collateral by forging the power of representation under the Plaintiff’s name.

(5) If the 7th page "(B)" is removed from office to "(c)," the 7th page 15;

(6) Parts 8, 20 to 9, parallel 8, parallel 20 to 9, parallel 20 as follows:

[Attachment]

Considering all the circumstances revealed in the proceedings of the instant case, such as “the cause of the occurrence or expansion of damages,” and the relationship with the Plaintiff and the Defendant Company, the amount of KRW 119,000,000,000, which the Plaintiff actually paid to the Defendant Company is merely KRW 85,000,000, and the remainder of KRW 34,00,000,000, which is the profit from the investment agreed upon by the Defendant Company, shall be deemed to have been the cause of the occurrence or expansion of damages, the Defendant’s liability for damages against the Plaintiff shall be limited to 40% of the damages suffered by the Plaintiff in light of the ideology of the equitable apportionment of damages.”

(7) Parts 9 to 11, 9, 9, and 11, shall be cut down as follows:

[Attachment]

As seen earlier, “19,00,000 won” and the Defendant’s liability for damages against the Plaintiff is limited to 40%, the amount of damages that the Defendant is liable to compensate to the Plaintiff is KRW 47,60,000 (=119,000,000 + 40%).

The defendant asserts that since the plaintiff was paid KRW 10,00,000 from co-defendant 2 of the first instance trial after the cancellation of the above right to collateral security, the defendant should deduct the above money from the amount of damages that the defendant should compensate for.

According to the above facts, the defendant's damages liability against the plaintiff and the joint defendant 2 of the first instance court against the plaintiff are independent obligations arising out of separate causes or identical economic purpose, and one of the other's obligations is extinguished due to repayment, etc. If part of the other's obligations is extinguished due to the other's non-joint and several liability relationship. In light of the purport of the joint and several liability system that seeks to secure the payment of the parties' intent and the whole amount of the obligations, the part that is extinguished first should not be considered as the part that is jointly and severally liable with the other debtor, but the part that is jointly and severally liable to the defendant's joint and several liability with the defendant's second instance court's joint and several liability with the defendant's second instance court's joint and several liability with the defendant's second instance court's joint and several liability with the defendant's second instance court's joint and several liability with the defendant's second instance court's joint and several liability with the defendant's second instance court's joint and several liability with the defendant's second instance court's joint and several liability with the defendant's second instance court's joint and one's joint and one's damages damages.

8) Except that the part “71,400,000 won” in Part 9 is deemed as “47,600,000 won”, it is identical to the corresponding part of the reasoning of the judgment of the first instance, and thus, it is acceptable to accept it as it is in accordance with the main sentence of Article 420 of the Civil Procedure Act.

2. Conclusion

Therefore, the plaintiff's claim against the defendant 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 defendant who ordered payment in excess of the above cited amount in the judgment of the court of first instance is partially unfair, it shall be accepted in part of the defendant's appeal and it shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed. The remaining appeal by the defendant and the plaintiff's appeal shall be dismissed as it is without merit. It

Judge Round (Presiding Judge) and at least a copy of a loan

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