[1] The case holding that where a notary public prepared a notarial deed on a promissory note forged by a notary public and only a copy of a forged resident registration certificate is confirmed as the identity of an issuer who is another person among the clients without an appearance of an addressee who is one of the clients, it cannot be deemed that the notary public performed his/her duty of identification required

[2] The case holding that a notary public is liable for damages as joint tortfeasor in recognition of the causal relationship between the negligence in preparing a notarial deed with respect to a promissory note forged by a notary public and the negligence in neglecting the duty of identification and the damage of a person who lent money, etc.

[3] The case holding that the amount of damages sustained by a person who lent money after receiving a notarial deed on a forged promissory note is not equivalent to the face value of a promissory note but equivalent to the loan actually contributed

[1] The case holding that where a notary public prepared a notarial deed on a promissory note forged by a notary public and only a copy of a forged resident registration certificate is confirmed as the identity of an issuer who is another person among the clients without an appearance of an addressee who is one of the clients, it cannot be deemed that the notary public performed the duty of identification required.

[2] The case holding that a notary public is liable for damages as joint tortfeasor in recognition of the causal relationship between the negligence in preparing a notarial deed with respect to a promissory note forged by a notary public and the negligence in neglecting the duty of identification and the damage of a person who lent money, etc.

[3] The case holding that the amount of damages sustained by a person who lent money after receiving a notarial deed on a forged promissory note is not equivalent to the face value of a promissory note but equivalent to the loan actually contributed

[1] Articles 27(2) and 56-2 of the Notary Public Act / [2] Articles 27(2) and 56-2 of the Notary Public Act; Article 760 of the Civil Act / [3] Articles 393 and 763 of the Civil Act

Moved Gu (Attorney Jeon-soo et al., Counsel for defendant-appellant)

Law Firm Barun

September 9, 2005

1. The defendant shall pay to the plaintiff 20 million won with 5% interest per annum from November 25, 2004 to October 7, 2005 and 20% interest per annum from the following day to the full payment day.

2. The plaintiff's remaining claims are dismissed.

3. The costs of the lawsuit are six minutes, and five minutes are assessed against the plaintiff, and the remainder are assessed against the defendant.

4. Paragraph 1 can be provisionally executed.

The defendant shall pay to the plaintiff 127,00,000 won with 5% interest per annum from the day following the day of serving a copy of the complaint of this case to the day of sentencing, and 20% interest per annum from the next day to the day of full payment.

1. Basic facts

A. Transactional relationship between the plaintiff and the non-party 1

(1) Around 2001, Nonparty 1 was working as an employee in the corporate bond office of Yeongdeungpo-gu Seoul Metropolitan Government, Yeongdeungpo-gu, Seoul. Nonparty 1 visited the above corporate bond office in 2001 and became aware of Nonparty 1.

(2) From around the first half of 2001, Nonparty 1 secured credit cards, loan certificates, copies of resident registration certificates, security, etc., and requested the Plaintiff to lend money, received money from the Plaintiff and delivered it to the obligor. The Plaintiff and the other party did not confirm who was the other party, and was in trust and was engaged in transactions with Nonparty 1. However, the Plaintiff did not inform Nonparty 1 of the accurate name, and traded by lending the name of the father-young, which is his wife.

(3) Until May 2002, Nonparty 1 and the Plaintiff continued to engage in the bond transaction by the aforementioned method. Nonparty 1 paid the interest agreed upon to the Plaintiff at the beginning of the transaction, but it became impossible to pay the principal and interest to the Plaintiff on the ground that the Plaintiff was not paid the loan properly from the obligor.

B. The document forgery by Nonparty 1

When non-party 1 receives a demand for the payment of principal and interest from creditors including the plaintiff, he again offers money from others as security, (1) he borrowed 60,00,000 won at par value on November 13, 202, (2) 200, 35,000,000 won in the name of the non-party 2, 20, 30,000 won in the name of the non-party 2, 60, 200, 200, 100, 200, 20,000, 20,000, 20,000,000, 20,000, 20,000, 20,000, 20,000,000, 20,000,000,00,000,00,000,00,00,00.

C. The defendant's notarial acts on each of the Promissory Notes of this case

(1) On Nov. 14, 2002, Nonparty 1 requested the preparation of a notarial deed as to the Promissory Notes No. 1 in this case to another person on Nov. 14, 2002 and found in the Defendant’s notarial office. Accordingly, the notarial deed No. 240, No. 2002 (hereinafter “No. 1 notarial deed”) was prepared on the part of the Defendant’s attorney No. 1 notarial deed as to the Promissory Notes No. 240 (hereinafter “No. 1 notarial deed”) on the part of Nonparty 1, while the Defendant’s employee and the client himself did not appear.

(2) After Nonparty 1 received a notarized Promissory Notes No. 1 as above, immediately thereafter, the Plaintiff delivered the Plaintiff’s 1 lease contract of this case, the 1 receipt of this case, the copy of the resident registration certificate of new exchange, and the 1st notarial deed of this case, which were forged with the other party of this case. The Plaintiff confirmed all of the above documents, and replaced Nonparty 1’s photograph of the resident registration certificate of new exchange with the other party of this case, and then transferred KRW 29,400,000 remaining after deducting advance interest from the loan amount of KRW 35,00,00 for new exchange at the interest bank account (Account Number omitted) in the name of Nonparty 2 of this case.

(3) On December 2, 2002, Nonparty 1 requested the preparation of a notarial deed as to the Promissory Notes No. 2 in the Defendant’s notarial office. Accordingly, the notarial deed No. 254 (hereinafter “No. 2 notarial deed”) in the Defendant’s notarial office was issued by Nonparty 1, while Nonparty 1 did not appear, the notarial deed No. 254 (hereinafter “No. 2 notarial deed”) in the Defendant’s notarial office. The notarial deed No. 254 (hereinafter “No. 2 notarial deed”) was signed by Nonparty 1 and the obligor and the issuer are entrusted with the notarial office with the notarial office of the Defendant.

(4) After Nonparty 1 received a notarized Promissory Notes No. 2 as above, he immediately delivered the Plaintiff’s 2 lease contract of this case, receipts No. 2 of this case, copies of resident registration certificates of Masung and No. 2 of this case, and notarial deeds of this case, which were forged with the other party 2 of this case. The Plaintiff confirmed all of the above documents, and replaced with the other party 2 of this case’s photograph of the resident registration certificates of Masung and transferred KRW 34,898,00,000 for loans for Masung to the above interest bank account in the name of Nonparty 2 of this case.

D. Nonparty 1 was indicted for committing a crime such as fabrication and uttering of each of the above documents. On April 13, 2004, Nonparty 1 was sentenced to four years of imprisonment with prison labor for the Seoul Southern District Court Decision 2003Da4767, 5599 (Joint) , 2004 Godan378 (Joint) and 578 (Joint).

[Ground of recognition] Unsatisfy, Gap evidence 1-1, 2-2, Gap evidence 2-1, 2-2, Gap evidence 3-1, 2-2, Gap evidence 4-1, 5-2, Gap evidence 5-1, 2, Gap evidence 6-1, 7-1, 2, 7-2, and Gap evidence 8

2. The parties' assertion and judgment

A. The parties' assertion

(1) The plaintiff's assertion

In preparing a promissory note, the Defendant is obligated to verify whether the client is the principal or not through the original resident registration certificate, etc., but, on the ground that there is a secret sense with Nonparty 1, the least person who is an employee of the Defendant, prepared and executed the Nos. 1 and 2 of this case only a copy of the resident registration certificate of this case, and this is deemed to have been negligent in performing the duty to verify the identity required by the notary public. Meanwhile, the Plaintiff believed that both the Nos. 1 and 2 of this case were to have been authentic, and the Plaintiff incurred damages to the Plaintiff by remitting 29,40,000,000,000 from which the interest on November 14, 200 was deducted from the account in the name of Nonparty 2, and then remitting 34,898,000,000 won after deducting interest on December 2, 202, the Defendant sustained damages to the Plaintiff as 1 and 2 of this case’s total face value 1,200,0000 won.

(2) The defendant's assertion

When a notary public prepares a notarial deed of a promissory note, he/she shall confirm the client himself/herself, but it can be confirmed through a copy and it is not necessary to confirm through the original resident registration certificate. Thus, it cannot be deemed that there was negligence on the part of the defendant who neglected his/her duty to confirm himself/herself, and on the other hand, it is meaningful that a bill is normally issued by the issuer and immediately executed at the time of refusal of payment, and it does not have any value of security in itself. Thus, even if there was any error in the notarial process of the notarial deed of a promissory note No.

In addition, the non-party 1 is the plaintiff's agent with respect to the money transaction, and if there is an agent, what kind of fact was known, and the issue of deception should be determined based on the agent's standard. Thus, the plaintiff, who was accused by the agent, is not subject to deception from anyone, and thus, it is not possible to seek damages from anyone.

B. Whether liability for damages was established

(1) Therefore, in preparing a notarial deed on Promissory Notes 1 and 2 of this case, we first examine whether the Defendant neglected his duty to confirm the identity in preparing a notarial deed (the Plaintiff is liable to the Defendant as the user of the lowest person, but the highest person is merely handling the work as the defendant's employee, and thus, the Defendant is responsible on the basis of the defendant).

In order to prepare a notarial deed of a promissory note, a notary public shall know the name of the client (the issuer and the addressee of the bill) and be exempted from it, and if he knows the name of the client or is not aware of the name of the client, he shall be required to submit a resident registration certificate or any other certificate issued by the competent administrative agency and a photograph attached thereto, or if a notary public knows the name of the client and is not aware of the fact, he shall be required to have two witnesses who are aware of the name of the notary public prove that the client is not upper, or to prove that the client is not upper (Article 56-2(1), (2) and (6), and Article 27(1) and (2) of the Notary Public Act).

However, in the case of this case, the defendant confirmed only the copy of the forged resident registration certificate submitted by the client in preparing the Nos. 1 and 2 of this case, and since the Nos. 1 and 2 of this case are generally granted public confidence in the documents prepared by the notary public, since the text of the acceptance of execution is written, it becomes a title of execution that can be immediately enforced when the notary is not performed without any obligation, and the paper simply copied through the copy of resident registration certificate is relatively easy, and it is difficult to regard it as a certificate attached to the photograph issued by the administrative agency or a document corresponding thereto because it is difficult to distinguish the identity of the photograph and real, and in addition, the defendant prepared the Nos. 1 and 2 of this case under the circumstance that the other person among the entrusting parties did not attend, it is difficult to view that only the copy of the resident registration certificate alone confirmed whether the client is the principal, as above, has fulfilled his duty to confirm the identity required by the notary public.

(2) Next, we examine whether there exists a causal relationship between the negligence on which the Defendant neglected the duty of identification and the Plaintiff’s damage.

In light of the fact that the Notary Public Act requires a notary public to verify that the client or his/her agent is not superior to that of the client himself/herself in preparing a deed, and at least that the deed was prepared by the client's will, even if the deed of promissory note is not a certain physical security for money lending, it is an executive title capable of compulsory execution immediately, and thereby, it is prepared and received as a security for the obligation in general transactions. Thus, there is no big difficulty in recognizing that the defendant's negligence in preparing the No. 1 and No. 2 No. 1 and there is a great difficulty in recognizing that, at least, the defendant's negligence in failing to perform his/her duty to confirm himself/herself was facilitating the intentional deception against the plaintiff 1 at least, and therefore, the causal relationship between the defendant's negligence and the plaintiff's damage is also reasonable (the "help in joint tort" refers to all direct and indirect acts that facilitate the tort, and it is difficult to support the defendant's negligence in interpreting the Civil Act that facilitates the plaintiff's damage by deceiving the plaintiff's pecuniary damage or his/her gross negligence.

On the other hand, the defendant's assertion that the plaintiff was not deceiving the plaintiff according to the legal principle that he was aware of the fact in the transactional relationship with the agent, and whether he was deceptioned or not, but the above legal principle is merely applicable to the relation to the other party in the ordinary transactional relationship, and as in the case of this case, it is difficult to say that the above legal principle is applied in judging whether the agent was deceiving the principal, and a third party assisted the deception of the agent in the process.

C. Scope of damages

(1) Plaintiff’s damages

The Plaintiff asserted that the Plaintiff sustained damages equivalent to KRW 127,00,00, which is the sum of the face value of the Promissory Notes Nos. 1 and 2 of this case due to the Defendant’s negligence. However, the Promissory Notes Nos. 1 and 2 of this case merely accepted the amount of face value which is much higher than the actual loan, as a collateral for the claim for loans, and thus, the Plaintiff’s ordinary damages incurred are not equivalent to the face value which can be gained if the Promissory Notes Nos. 1 and 2 of this case were collected at the due date, but not the face value which can be gained if the Promissory Notes Nos. 1 and 2 of this case were issued and actually contributed to 64,298,000 (the amount of KRW 29,40,000 which was lent with the No. 1 No. 1 of this case + the amount of KRW 34,898,000 which was lent with the No. 2 of this case’s notarial deed).1 of this case.

(2) Fruits offsetting

In addition to the receipt of the notarial deeds Nos. 1 and 2 of this case, the plaintiff himself/herself lends money after comparing and checking the copy of the resident registration certificate and the notarial deeds of this case, the non-party 1 who directly caused the plaintiff's damage to the plaintiff is a person who has entered into a usual transaction for the bond transaction, and the defendant is merely a person who has made a usual transaction for the bond transaction, and the defendant can be deemed to have been used for the non-party 1 and the defendant can be deemed to have been used for the non-party 1. In full view of all the circumstances revealed in the arguments of this case, the degree of the plaintiff's negligence who has contributed to the occurrence of damage is much larger than the defendant's negligence, and therefore, it is reasonable to limit the amount of the damages to be compensated by the defendant to KRW 20 million.

D. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff the amount of 20,000,000 won and damages for delay at each rate of 5% per annum under the Civil Act from November 25, 2004 to October 7, 2005, which is the sentencing date of this case, and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the following day to the full payment date, as the plaintiff seeks.

3. Conclusion

Therefore, the plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.

Judges Cho Jae-su (Presiding Judge)