(영문) 서울고등법원 2020.12.17. 선고 2020누30124 판결

2. The Defendant’s disposition of reprimand against the Plaintiffs on February 14, 2019 is revoked. 3. The total costs of the lawsuit are borne by the Defendant.

Purport of claim and appeal

The same shall apply to the order.

Reasons

1. The reasons why the court should explain this part of the reasons for the decision of the court of first instance are the same as the corresponding part of the reasons for the decision of the court of first instance (Article 8(2) of the Administrative Litigation Act and the main sentence of Article 420 of the Civil Procedure Act.

C. Determination, each of the dispositions of this case is premised on the fact that the plaintiffs violated Article 4 of the guidelines of this case. Thus, first, we examine the plaintiffs' first assertion, that is, whether the illegality of Article 4 of the guidelines of this case is valid (effective).

Article 4 of the instant Guidelines imposes an obligation on a notary public to refuse a commission in the form of a monetary loan agreement by a credit service provider, etc., in cases of claims and obligations arising from a monetary loan agreement by a credit service provider, etc., and thus, it shall be deemed null and void in violation of the principle of legal superiority (see Supreme Court Decision 2020Du42262, Nov. 1, 2020). The specific reasons are as follows (hereinafter referred to as “written evidence number and the title are modified in accordance with the instant case”).

“1) The Notary Public Act and subordinate statutes, such as real estate, ships, construction machinery, automobiles, aircraft, etc.

When one party commissions the preparation of a notarial deed stating the purport that he/she accepts a compulsory execution against a claim for the delivery and return of a movable asset registered and recorded, he/she shall not act as an agent for the other party or as an agent for either party (Article 56-3) and when entrusting the preparation of other notarial deeds, he/she shall allow the commission by an agent: Provided, That where a notary public prepares a notarial deed upon commission by an agent, he/she shall confirm the identity of the client himself/herself and the commissioned agent by means of having the client submit a resident registration certificate or other certificate accompanied by a photograph issued by the competent administrative agency (Articles 27 and 30), a certificate proving the right of representation, a certificate of personal seal impression or a certificate concerning signature prepared by the competent administrative agency to verify the authenticity thereof, and then confirm the authority of the commissioned agent by the method that the notary public and the commissioned agent shall read or peruse the certificate prepared by a notary public, and shall sign and seal the deed with his/her intention, and shall write his/her name and seal thereon on the certificate (Article 38 (3).

2) Article 124 of the Civil Act prohibits a person from acting as a principal and a person acting as a principal without the person’s consent, and does not prohibit a person from acting as a principal and a person acting as a principal if he/she so permits. In addition, “a declaration of intent to conclude a contract and a declaration of intent to accept compulsory execution” and “a declaration of intent to commission the preparation of an execution document” should be distinguished. As long as the person acting as the principal himself/herself has directly expressed his/her intent, it does not violate Article 124 of the Civil Act to delegate only the power of representation on the latter’s declaration of intent to entrust the preparation of an execution document (see, e.g., Supreme Court en banc Decision 72Da1183, May

3) Article 6-2(1) of the Credit Business Act prohibits a person from acting on behalf of both parties to a contract by providing that, when a credit service provider enters into a loan agreement with the opposite contractual party, important matters, such as the amount of loan, interest rate of loan, and period for repayment, shall be stated in writing by the opposite contractual party. However, this is only applicable to a credit service provider registered under Articles 2 subparag. 1 and 3 of the Credit Business Act, and does not apply to other financial institutions. As long as an obligor has expressed his/her intent to accept the conclusion of a loan agreement and compulsory execution, it does not violate the above legal provisions to delegate the power of representation as to the “declaration of intent to commission

4) According to the Defendant’s explanatory materials and news report materials (Evidence Nos. 5 and 6) concerning the purport of the instant guidelines, the Defendant demanded that the “credit service provider, etc.,” collectively commission a specific notarial office to prepare a document of execution of a notarial deed one hundred and one day (hereinafter referred to as the “collective commission”) and the credit service provider, etc., unilaterally prepare in the course of concluding a monetary loan contract with the other party, to sign the “representative to commission the preparation of an executor’s certificate,” which is unilaterally prepared in advance with the other party, and the notary public, upon formation of a flexible relationship between the credit service provider, etc. and the notary public entrusted with collective representation, without checking the authenticity of the declaration of intention by face-to-face between the client or his/her agent, without complying with the procedures for preparation of a notarial deed as stipulated in the Notary Public Act, and there is a problem such as providing rebates at an illegal discount of the fee.

Since the necessity of the regulation on the violation of the Notary Public Act is recognized, the legislative purpose of Article 4 of the instant Guideline is deemed justifiable. In particular, if a notary public violates the procedure for confirmation and signature prescribed in Article 38 of the Notary Public Act in the course of preparing an individual execution document, or voluntarily reduces fees prohibited by Article 30 of the Notary Public Fee Rule according to delegation under Article 7(5) of the Notary Public Act, such act constitutes a violation of the Notary Public Act and constitutes grounds for disciplinary action under Article 82(1)1 of the Notary Public Act.

However, as seen earlier, Article 4(1) of the Notary Public Act permits a request in the form of a bilateral agency, not a certificate of execution with respect to a claim aimed at the delivery and return of real estate, etc. Therefore, it cannot be deemed that the "credit service provider, etc." committed a commission in the form of a bilateral agency with respect to a monetary loan contract, which is not a "justifiable reason" as stipulated in Article 4(1) of the Notary Public Act. Article 4 of the Guidelines of this case does not constitute "justifiable reason" as to whether a monetary loan contract concluded between a credit service provider, etc. and the other party is invalid, whether the declaration of intention of the other party to delegate the right to request preparation of an execution certificate is invalid, whether a request in connection with a monetary loan contract made by a credit service provider, etc. is an individual client or collective agent, and whether a notary public is a client or collective agent, and whether a notary public violates any provision of the Notary Public Act in the course of preparation of an execution certificate pursuant to a commission by a "credit service provider, etc." is not a legitimate reason for accomplishing the legislative purpose of Article 4 of this case.

3. Conclusion

Therefore, the disposition of this case is revoked in an unlawful manner, and the judgment of the court of first instance is unfair in conclusion, so it is so decided as per Disposition by cancelling the disposition of this case upon receiving an appeal from the plaintiffs and cancelling it.