2016Na25677 Loans

2016Na25684 (Joint) Compensation for damages

Nonghyup Bank Inc.

Uniform-ro 120, Jung-gu, Seoul (Jari-ro 1, the National Headquarters of the Agricultural Cooperative Federation)

Daegu Northern-ro 67 (Seoul-dong, Seoul-do Regional Headquarters of the Republic of Korea)

A Representative Director

Attorney Nam-jin et al., Counsel for the defendant

Gyeongbuk-gu Residential City

Attorney Park Tae-ho, Counsel for the defendant-appellant

Daegu District Court Decision 2015Gahap201804, 2015 Decided September 1, 2016

202630 (Joint Judgment) Judgment

March 8, 2017

March 29, 2017

1. Of the judgment of the court of first instance, the part against the defendant ordering payment of KRW 248,88,250 out of the amount of KRW 600,68,250 to the plaintiff and the amount of KRW 5% per annum from March 7, 2015 to March 29, 2017, and the amount of KRW 15% per annum from March 7, 2015 to the date of full payment on the following day, shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed.

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

3. 60% of the total litigation cost between the Plaintiff and the Defendant shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

1. Purport of claim

The defendant jointly with the defendant C, D, E, and the Republic of Korea of the first instance and 600,688,250 won and the plaintiff

from March 7, 2015 to the final service date of a copy of the complaint of this case, 12.85% per annum, and from the following day:

C. By the day of full payment, 20% interest per annum shall be paid.

2. Purport of appeal

○ Plaintiff: The part against the Plaintiff falling under the part of the first instance judgment ordering additional payment below

The defendant is revoked in collaboration with the co-defendant C and D of the first instance trial and 600,688,250 won to the plaintiff.

60,068,825 won and the following day from March 7, 2015 to September 1, 2016: 5% per annum;

It shall pay 15% interest per annum from the date of full payment to the date of full payment.

○ Defendant: Revocation of the part against the Defendant in the first instance judgment, and the Plaintiff’s claim corresponding to the revoked part.

The dismissal is dismissed.

1. Basic facts

The reasons for this part are as follows: (a) all the parts indicated “Defendant” among the indications of co-defendant C, D, E, and Korea in the first instance trial are changed to “Co-Defendant of the first instance trial”; (b) the part of “C. 6-2 of the first instance judgment”; and (c) the part of “C. 6 of the first instance judgment” is changed to as follows; and (c) the part of “(a)” is added to “(a) No. 23 through 30 of E. 2, E, and E. 52” in the column of the first instance judgment, except for the addition of “(a)” to “(b) No. 7 of E. 2, E. 23 through 30 of E. 52 of the reasons for the first instance judgment, this part is identical to the part of

“2) As to the instant loan agreement, on May 2, 2014, F completed on May 2, 2014, the registration of the establishment of a mortgage on each of the instant forests to the Plaintiff, the Plaintiff with the right to collateral security, the maximum debt amount of 1.2 billion won, and the registration of the establishment of a mortgage on the first-class debtor C (hereinafter referred to as the “registration of the establishment of a mortgage on the instant forests”). However, the said registration of the establishment of a mortgage was also conducted on behalf of the Defendant. After that, on June 9, 2014, F completed the registration of the establishment of a mortgage on July 9, 2014, G with the right to collateral security, the maximum debt amount of 225 billion won, and the debtor F with the second-class debtor F with the registration of the establishment of a mortgage on the instant forests by another certified judicial scrivener.”

2. The assertion and judgment

A. The plaintiff's assertion

The Defendant, despite the fact that the owner in the forest land register of this case was D (1932) but neglected to verify the ownership transfer registration of this case and the establishment registration of collateral security right, caused damages equivalent to the loan amounting to the Plaintiff who entered into the loan contract of this case between Codefendant C of the first instance court and Codefendant C, thereby incurring damages equivalent to the loan amounting to KRW 600,688,250 (200,000,000,000,000,000,0000,000,000,000,000,000,000,0000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,000,00,000).

B. Determination

1) Establishment of and limitation on liability for damages caused by a tort

The reasons for this Court concerning this part are as follows: (a) the corresponding part of the judgment of the court of first instance, i.e., the corresponding part of the judgment of the court of first instance, i.e., 10 to 15, i., i.e., the corresponding part of the judgment of the court of first instance; and (b) therefore,

0 The co-defendant C of the first instance trial and D shall be changed to "joint defendant of the first instance trial" in all parts indicated as "the defendant" among the party indications.

10 Change from May 7, 2014 to "No. 09:07 around May 2, 2014" of the 13th sentence of the first instance judgment to "No. 09:07 around May 2, 2014."

0 Part XIII of the decision of the first instance court shall be added to the following:

The defendant asserts to the purport that the defendant did not commit any negligence on the part of the defendant, on the ground that, in the event that the applicant lost the certificate of registration in the absence of the resident registration number of the nominal owner in the real estate register, the defendant is in principle responsible for verifying the identity of the true nominal owner in the real estate register and the applicant’s resident registration number recorded in the column of the nominal owner on the register. Furthermore, there are many cases where there are no obligations to verify the identity of the true nominal owner in the real estate register, and the resident registration number of the real estate register is very rarely recorded in the real estate register, and there is no significant significance for the owner’s personal data as well. If the first instance co-defendant D issued the same as the forged real estate register, etc. from the beginning, the defendant would not have any need to obtain a new copy of the book of registration register, and as such, the defendant was issued a new copy for the application of registration by presenting a copy of the forged real estate register, it cannot be determined that there was negligence in the process of identification by the applicant for registration.

However, as seen in the above circumstances, the defendant, in the case of this case, received a copy of the original book of this case forged through the joint accusation of the first instance court and D (Evidence Nos. 2-1 through 3) and then acquired a copy of the original book of this case (Evidence No. 29) through the Internet issuance prior to the preparation of the confirmation document of this case (Evidence No. 8-1 through 3). Thus, even if he paid little attention to the possibility of forgery of the original book of this case, even if he had paid a little amount of attention, such as comparison of the identity between the two parties, he can easily doubt the possibility of forgery of the original book of this case (the fact that the copy of each book of this case newly issued through the Internet issuance by the employees of the defendant office is forged, and the defendant's assertion that there is a possibility of restriction on the defendant's identity should not be accepted in addition to the above circumstances.

0. On the 15th through 17th of the judgment of the first instance court, the part of the 15th and 15th of the 15th of the 15th and 17th of the 15th of the 15th of the 19th instance judgment, “Such negligence of the plaintiff was caused by the occurrence or probability of damages, and thus, it shall be considered in calculating the liability of the defendant B, but the ratio of the plaintiff’s negligence shall be 40%

“The Plaintiff’s negligence caused the occurrence or expansion of damages, and thus, the Defendant’s responsibility should be taken into account. In addition, the primary factor causing the Plaintiff’s damage is that the Defendant’s co-defendant D and net F, etc. were land without the resident registration number of the owner of the injury on the registration of real estate, and the Defendant committed planned crimes to acquire loans, etc. by providing them as collateral to the Plaintiff, which is a financial institution, and by taking account of the fact that the Plaintiff, which is a financial institution dealing with large amount of loans, was not aware of their criminal acts, and as such, the Plaintiff also did not have any specific problem at the time of its review on the basis of the above provision, such as an abstract of the resident registration card forged from the above D and a copy of the original book of this case, which was presented, and thus, the Defendant did not have any specific duty of care as to the Defendant’s failure to obtain any new copy of the ownership transfer registration and the duty of care as the genuine owner of each forest of this case, and as such, the Defendant did not have any new copy of the 4.

2) Scope of damages

A) Calculation of damages

The ordinary damages suffered by the Plaintiff, the mortgagee of the right to collateral security, by making a loan to the buyer of the instant real estate with a trust in the registration of title transfer, after completing the registration of the establishment of the collateral security right, after having the loan to the buyer of the instant real estate and cancelling the registration of the establishment of the collateral security right. In other words, the amount contributed to the said real estate with the belief that the ownership completed in the name of the buyer F is valid and able to acquire the security right, i.e., the amount contributed to the said real estate within the scope of the maximum debt amount within the limit of the value of each forest of this case, which is the object of the collateral security (see Supreme Court Decision 98Da27623, 27630 delivered on April 9, 199).

However, comprehensively taking account of the purport of each of the above statements and arguments as to Gap 7 and 80. The officially assessed land price of this case in 2014 is as follows: ① the alternative 71m2,950m2 per 340,935,000 m2 per 5,950m2 per 1m2); ② the 79 m29-1 m290,479 m23,900 m200 per 3,900 m20,000 per 1m20,000 m20,000,000 per 1m20,000,000 per 1m2,000,000,000 won per 1m2,000,000 won per 30,000,000 won per m20,000 won per 30,000 won per m20,308.

B) Effect due to partial performance by Codefendant C and the networkF of the first instance trial

(1) The defendant's argument

The Plaintiff asserts to the effect that the amount of the Defendant’s damage liability is extinguished as much as the amount of recovery is recovered by recovering KRW 399,311,750 from Codefendant C and NetworkF of the first instance trial.

(2) Determination

(A) Facts of recognition

Comprehensively taking account of the purport of Gap evidence 19-1 and 2- the entire arguments and the purport of Gap evidence 19-1 and 2, Gap Co-Defendant C of the first instance trial, the debtor of the loan, collected KRW 4,300,000 from September 1, 2014 to December 30, 2014, together with KRW 21,50,000 for five times, the plaintiff appropriated the above money to repay the principal amount of KRW 1,00,000,000 for five times.

(B) As to partial repayment KRW 21,500,000 by Codefendant C of the first instance trial

The liability for damages arising from the Defendant’s negligence’s joint tort liability and the obligation for loans by Co-Defendant C of the first instance trial under the loan agreement of this case are independent obligations arising from separate causes, but with respect to the same economic purpose, if one of the other’s obligations is extinguished due to repayment, etc., then the other party’s obligation is also extinguished. In such a case where part of the other obligations is extinguished due to repayment, etc. of a large amount of debt, in light of the purport of the joint and several liability system with intent to ensure the payment of the parties’ intent and the full amount of the obligation, the first extinguished part of the obligation should be deemed the part jointly and severally liable with other debtors (see, e.g., Supreme Court Decision 9Da67376, Mar. 14, 200).

Based on the above legal principles, in this case, among the loan debt amounting to KRW 1,00,00,000,00, the Defendant’s joint and several liability amount of KRW 400,000,000, the joint and several liability amount of KRW 600,000 is limited to the joint and several liability amount of KRW 30,00,000, and the remainder of KRW 600,00 is the joint and several liability amount of KRW 30,00,00 is not the joint and several liability amount of KRW 21,50,00,00 among the loan debt amount of KRW 21,00,00 of the joint and several liability amount of KRW 30,00,00 is not the obligation amount of KRW 60,00,00,000, which is the obligation amount of KRW 300,000,00 is not the obligation amount of KRW 400,00,000.

(C) As to partial repayment of the networkF KRW 377,81,750 (=350,757,970 + 27,053,780)

According to the above facts of recognition, it is reasonable to view that the claim for return of the registration tax against the deceased F's office of Pyeongtaek-si, a joint tortfeasor, was acquired by the plaintiff and appropriated for the principal of the loan of this case as the principal of the loan of this case is ultimately paid the liability for damages from the deceased F who is liable for joint tort.

In this case, in a case where the Defendant, who is another joint tortfeasor, is jointly and severally liable for damages due to partial repayment of the deceased F, and the extent of extinguishment thereof, is jointly and severally liable for damages to another person, the scope of the liability extinguished depending on who is the tortfeasor’s fault ratio and if the scope of damages to be compensated varies depending on who paid the damages to the victim. In a case where a person liable for a small amount of damages pays part of the damages after the establishment of a tort, the obligation of the person liable for a large amount of damages ceases to exist. If a person liable for a large amount of damages pays part of the damages, the obligation of the person liable for a small amount of damages should be deemed to be extinguished in full, but the obligation of the person liable for a small amount of damages should be deemed to be extinguished as corresponding to the ratio of negligence of the party liable for a small amount of damages (see, e.g., Supreme Court Decision 94Da5731, Mar. 10, 195).

Based on the above legal principles, in the case, KRW 377,81,750 of the deceased F, a joint tortfeasor, was paid as part of the compensation for damages against the plaintiff as a joint tortfeasor with intent to compensate for the total amount of damages ( KRW 1,000,000). Thus, the defendant's obligation to compensate for damages ( KRW 400,000) equivalent to the ratio of liability as a joint tortfeasor with negligence is not extinguished, but the part corresponding to the above ratio of liability is extinguished. Therefore, the remaining damages to be borne by the defendant are 248,875,30 won (= KRW 400,000 - KRW 151,124,700 - KRW 377,81,750 x 400).

(D) Therefore, the Defendant’s assertion on the extinguishment of the above obligation is justified only within the scope of the above recognition.

3) Judgment on the defendant's assertion

The defendant asserts that since the co-defendant C of the first instance trial set up a right to collateral against the plaintiff at least 132,392,440 won ( = the appraised value of the above land and building - the maximum debt amount of 234,00,000 won for a non-permanent agricultural cooperative of the Republic of Korea) with the real estate at least 132,392,440 won (the appraised value of the above land and building - the maximum debt amount of 366,392,440 won), the amount of compensation for damages should be reduced accordingly.

Therefore, the Plaintiff’s damage claim was established on May 2, 2014 where the loan was paid. After this, even if the Defendant Co-Defendant C established the right to collateral security on the real estate to the Plaintiff, it cannot be deemed that the part of the above damage claim was extinguished unless the real repayment was made. Thus, the Defendant’s above assertion is without any justifiable ground ( even if the Defendant’s claim is assumed that the above KRW 132,392,440, which is the Defendant’s claim is repaid by Co-Defendant C, who is the Defendant, the lender, even if it is assumed that the Defendant paid the above KRW 600,688,250, and the damages incurred therefrom, which is jointly borne with the Defendant, are limited to KRW 248,875,30, and the above portion is limited to KRW 351,812,950, 608,250, 208, 208, 3084, 308, 208).

C. Sub-committee

Therefore, the Defendant is jointly with Co-Defendant C and D of the first instance trial and liable to pay damages for delay calculated at the rate of 15% per annum from the date of tort 248,875,300 won to the Plaintiff, which is 600,68,250 won, until March 7, 2015, for which the Plaintiff seeks compensation from March 7, 2015 to the date of the original judgment, 5% per annum under the Civil Act until March 29, 2017, and until the date of full payment, 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings until the date of full payment (the Plaintiff 5% per annum from March 7, 2015 to the date of the final delivery of a copy of the complaint of this case). Thus, the Defendant is not obliged to pay damages for delay calculated at the rate of 12.85% per annum from the date following the first instance judgment to the date of full payment, to the date of 20% per annum.

3. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claims shall be dismissed as there is no reason. Since the judgment of the court of first instance is partially unfair, it shall be accepted by the defendant's appeal, and the part against the defendant ordering payment exceeding the above recognition amount among the judgment of the court of first instance shall be revoked, and the plaintiff's claim corresponding to the revoked part shall be dismissed, and the plaintiff's appeal and the remaining appeal by the defendant shall be dismissed.

Clinical technicians (Presiding Judge)

Lee Jin-Jin

South Korean War