Sucho-si (Attorney Im-soo et al., Counsel for defendant-appellant)

Defendant (Law Firm Barun, Attorneys Cho Han-han et al., Counsel for the defendant-appellant)

July 21, 2004

Chuncheon District Court Decision 2002Gahap846 delivered on September 26, 2003

1. Of the judgment of the court of first instance, the part against the plaintiff falling under the following order of payment shall be revoked.

The defendant shall pay to the plaintiff 50 million won with 5% interest per annum from November 7, 2002 to September 8, 2004 and 20% interest per annum from the next day to the date of full payment.

2. The plaintiff's remaining appeal is dismissed.

3. The total cost of a lawsuit shall be divided into two parts, one part, and the other part shall be borne by the plaintiff, respectively.

4. The part ordering the payment of money under paragraph (1) may be provisionally executed.

The judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 105,00,000 won with 5% per annum from September 21, 2001 to the date of the first instance judgment, and 25% per annum from the next day to the date of full payment.

1. Basic facts

The following facts can be acknowledged by comprehensively considering the evidence Nos. 1 through 5, evidence No. 6-1, 2, evidence No. 8, evidence No. 1, each statement No. 1, Non-Party 3's testimony of Non-Party 3, Non-Party 4 and Non-Party 2's testimony of Non-Party 4, Non-Party 2's testimony of Non-Party 1, Non-Party 1's national bank of the court of first instance, and the Young-gu Saemaul Bank of Korea

(a) Registration of creation of first chonsegwon;

On November 6, 1995, the Plaintiff concluded a contract to lease on a deposit basis with Nonparty 5 to use the third floor 301 (hereinafter referred to as the “instant real estate”) among the above buildings (hereinafter referred to as the “instant building”) owned by Nonparty 5 as the center for senior citizens at the Seocho-si National Senior Citizens Association in order to use the pertinent real estate as the center for senior citizens at the Seocho-si National Senior Citizens Association, the Plaintiff signed a contract with Nonparty 5 on a deposit basis for the instant real estate until November 6, 1997, and delegated the Defendant, a certified judicial scrivener, to file an application for the registration of the establishment of a right to lease on a deposit basis. On November 7, 1995, the Plaintiff completed the registration of the establishment of the right to lease on a deposit basis (hereinafter referred to as the “registration of the establishment of the right to lease on a deposit basis”).

(b) Registration of creation of second chonsegwon:

(1) Upon the expiration of the period of the lease on a deposit basis, the Plaintiff increased the lease on a deposit basis to KRW 105,00,000 between Nonparty 5 and Nonparty 5 on November 6, 1997, and the lease on a deposit basis set the period as until November 6, 199, entered into a contract to establish a lease on a deposit basis on a deposit basis for lease on a deposit basis, and delegated the Defendant to file an application for the

(2) With respect to the instant real estate at the time, the lower court determined that ① on November 11, 1995, the maximum debt amount of KRW 140,00,00,000, the debtor, and the Seocho Saemaul Depository belonging to the creditor (formerly changed Saemaul Depository), ② was the debtor 1,40,000,000 on November 1, 1995, the debtor was the Seocho Saemaul Depository belonging to the creditor, ③ was the debtor, the debtor was the debtor, the non-party 5,00,000, the debtor was the non-party 5, the non-party 75,000,000, the non-party 1,000,000 won, the maximum debt amount of KRW 75,00,000,000,000, the debtor, the non-party 1, the creditor, and the non-party 1, 196, the creditor, and the non-party 1,609, the creditor, and the non-party 1, 16.

(3) The public official in charge of Nonparty 3 of the Plaintiff’s home welfare division affixed the official seal of the Plaintiff’s market on November 19, 197 to deliver to the Defendant the contract to establish a right of lease on a deposit basis, the document of termination of a right of lease on a deposit basis, and the document of delegation of an application for registration. The Defendant applied for cancellation registration of the first right of lease on a deposit basis on a deposit basis, and on November 21, 1997, filed an application for registration of new right of lease on a deposit basis under the Plaintiff’s name, and completed the registration of establishment of a right of lease on a deposit basis (hereinafter “registration of second right of lease on

(c) Registration of creation of third chonsegwon; and

(1) On September 16, 1999, Nonparty 1, the wife of Nonparty 5, completed the registration of ownership transfer based on the division of property on the instant building on the ground of the division of property on May 21, 199. On September 21, 1999, the Plaintiff entered into a lease contract on the instant real property with Nonparty 1 for the duration up to September 21, 2001, with the same content as the previous, and delegated the Defendant with the right to lease on a deposit basis on the same day.

(2) The public official in charge of the Plaintiff’s home welfare center Nonparty 4 attached the official seal of the Plaintiff’s market to the Defendant on the documents such as the contract to establish a chonsegwon prepared by the Plaintiff, the contract to cancel a lease on a deposit basis received from the Defendant’s side, and the

(3) On September 21, 1999, the defendant applied for the cancellation registration of the registration of the second chonsegwon under the name of the plaintiff as the receipt number No. 13795, and filed an application for the cancellation registration of the second chonsegwon with the registration number No. 13795. On the same day, the defendant filed an application for the cancellation registration of the second chonsegwon under the name of the plaintiff, with the registration number No. 13804, around 17:15, on the same day, the registration of the establishment of chonsegwon in the name of the plaintiff (hereinafter referred to as the "third lease registration").

(4) On the other hand, Nonparty 1 repaid each of the collateral obligations listed in Section 2-2 of B to the Korea Housing and Commercial Bank as a collateral, and cancelled the registration of establishment of each of the collateral obligations on September 28, 199.

(d) Progression and distribution of the auction procedure;

On July 25, 2001, prior to the expiration of the Plaintiff’s lease period, the Korea Housing and Commercial Bank had been conducting an auction procedure following the application for voluntary auction on the instant building including the instant real estate. Of the amount to be distributed in the distribution procedure on November 7, 2002, the amount of KRW 935,018,400, totaling KRW 18,000 (+8,000 + KRW 2,00,000 + KRW 2,000 + KRW 2,000) to three of the subordinate lessees, among the amount to be distributed in the distribution procedure on November 7, 2002, the amount to be distributed to each of the subordinate lease holders, and the Plaintiff did not receive at all the distribution related to the lease deposit claim.

2. The plaintiff's assertion

A. The plaintiff entrusted the registration of the establishment of the right to lease on a deposit basis for the second and third types of chonsegwon to ensure that the registration of the establishment of the right to lease on a deposit basis has been completed. Although the defendant, as a certified judicial scrivener specialized in the registration affairs, handles delegated affairs with the care of a good manager according to the main text of delegation, he arbitrarily cancelled the plaintiff's existing right to lease on a deposit basis, and made the registration of

B. The Defendant neglected to explain and advise the Plaintiff to have an opportunity to preserve the claim for the return of lease on a deposit basis by explaining such circumstance and maintaining the registration of the change of lease on a deposit basis if it is difficult to register prior to the contract to establish a new right to lease on a deposit basis because the registration of the establishment of a new right to lease on a deposit basis was completed after the registration of the establishment of a right to lease on a deposit basis at the time of accepting the application for the registration of the establishment of a right

C. The Defendant already accepted the application for the registration of the third right to lease on a deposit basis from the Korea Housing and Commercial Bank before accepting the application for the registration of the third right to lease on a deposit basis, and thus, in violation of the Plaintiff’s duty, the application for the registration of the establishment of the third right to lease on a deposit basis should have been processed first, and thus the Plaintiff’s right to lease on a deposit basis was subordinate to each right to lease on a deposit basis, and even if not, the Defendant should have notified the Plaintiff of the above fact so that the Plaintiff can preserve the order of the lease on a deposit basis.

D. The Defendant was liable to pay the Plaintiff the amount of KRW 105,00,000 equivalent to the deposit money for lease on a deposit basis, and the damages for delay from September 21, 2001, which is the expiration date of the lease on a deposit basis, since the Defendant incurred losses from the Plaintiff’s failure to pay the deposit money at all during the above auction procedure due to the said nonperformance or tort.

3. Determination

A. Details of each application for registration delegated by the Plaintiff

The testimony of Non-party 3 and non-party 4 of witness of the first instance court and witness of the first instance court, which seems to correspond to the plaintiff's argument that the plaintiff entrusted the registration of establishment of the first instance right to lease on a deposit basis to the defendant in the course of entrusting the registration of establishment of the first instance right to lease on a deposit basis. According to each of the evidence No. 1 and evidence No. 6-2, each of the above documents of the contract of lease on a deposit basis prepared by the plaintiff in entrusting the registration of establishment of the first instance right to lease on a deposit basis, it is recognized that the document of the contract of lease on a deposit basis prepared by the plaintiff in the course of entrusting the registration of establishment of the first instance right to lease on a deposit basis to the non-party 4 and No. 11-3, No. 5, No. 15, No. 15, 21, 22, 28, and 29, the plaintiff did not have any other evidence to acknowledge that the contract of lease on a deposit basis was made.

Therefore, the plaintiff's above assertion is without merit.

(b) Occurrence of damages due to breach of duty of care;

(1) The legal relationship in which the client requests a certified judicial scrivener to file an application for registration with the certified judicial scrivener and accepts it is a delegation under the Civil Act. Since the mandatory performs the delegated affairs with the care of a good manager according to the purport of the delegation, a certified judicial scrivener who is the mandatory must first follow the instructions of the mandator. However, when following this instruction does not conform to the purport of delegation or disadvantage the client, he may inform the client of the details thereof and request or recommend the modification of the instructions (see Supreme Court Decision 60Da1671, Jan. 10, 2003). Although the Attorney-at-Law prohibits a person other than the lawyer from participating in a lawsuit or dispute beyond the scope of his duties, he does not allow the person concerned to give appropriate explanation or advice within the scope related to the handling of the duties provided by the Certified Judicial scrivener Act, and does not exempt him from the duty of explanation or advice arising from other laws, etc. (see Supreme Court Decision 607Da1671, Jun. 10, 2003).

On the other hand, the defendant is a certified judicial scrivener with professional knowledge in the registration affairs, while the plaintiff is a local government, not a general citizen. However, each application for registration in this case was partially limited to the duties of the center for older persons in charge of property management or accounting among the departments to which the plaintiff belongs, and the reason why the person having a right to lease on a deposit basis has completed the registration for establishing a right to lease on a deposit basis is to secure a right to lease on a deposit basis, barring special circumstances, the defendant, a certified judicial scrivener, barring special circumstances, that if the registration for establishing a right to lease is cancelled and a new right to lease on a deposit basis has been made, the plaintiff's right to lease on a deposit is more superior to the registered mortgagee prior to the registration for establishing a new right to lease on a deposit basis. ② If the registration for establishing a right to lease on a deposit has been made in addition to the written consent of the subordinated mortgagee who is an interested party or a certified copy of the judgment that can oppose it, the plaintiff can maintain the order of priority in existing right to lease on a deposit.

(2) In addition, even before and after the fact that the Defendant was the number of the applications for the registration of the third chonsegwon, the application for the registration of the establishment of each of the instant real estate was accepted from the Korea Housing and Commercial Bank. Thus, if the Plaintiff first entrusted the registration of the third chonsegwon, the application for the registration of the establishment of each of the above facilities should have been processed after the application for the registration of the third chonsegwon. Even if the business was first entrusted by the Korea Housing and Commercial Bank, the Defendant is obliged to notify the Plaintiff that the first priority was scheduled to have been registered, and to provide the Plaintiff with an opportunity to take measures to secure the right

(3) However, in full view of the statements in Gap evidence 7 and 9 as well as the testimony of non-party 3 and non-party 4 as witnesses of the court of first instance, the defendant did not give the plaintiff any explanation or advice as above in accepting and handling the application for the establishment of the right to lease on a deposit basis for the second and third lease on a deposit basis. In handling the affairs of the application for the establishment of the right to lease on a deposit basis for the third lease on a deposit basis, it is recognized that the non-party 1 believed that he agreed with the plaintiff to make a registration of the right to lease on a deposit basis after having made the registration of the establishment of the right to lease on a deposit basis after having made the registration of the establishment of the right to lease on a deposit basis for the third lease on a deposit basis, and it is

Therefore, the defendant is liable for damages sustained by the plaintiff due to the cancellation of the registration of the establishment of the first and second chonsegwon(right to lease on a deposit basis) in violation of the above duty of care, barring any special circumstances, by failing to receive dividends on the date of distribution on November 7, 2002.

(In light of the above facts, according to the agreement between the plaintiff and the non-party 1, the defendant filed an application for the registration of the third right to lease on a deposit basis, which is lower than each right to collateral security in the Korea Housing and Commercial Bank, and even if not, as requested by the plaintiff, the non-party 1, who is the expression agent of the plaintiff, did so, and therefore, the plaintiff did not be liable for the failure

However, there was an agreement between the plaintiff and the non-party 1 as alleged in the defendant, and the non-party 4 alleged that the non-party 1 also called the defendant's office and demanded that the non-party 1 make a statement of Nos. 3-1, 2, and 5-2, and the testimony of the non-party 2 of the first instance court and the trial witness of the court of first instance as it is in light of the above facts of recognition, and there is no other evidence to acknowledge it. Thus, the defendant's argument that the plaintiff and the non-party 1 set up a right to lease on a deposit basis higher than the right to collateral security of the Korea Housing and Commercial Bank according to the agreement between the plaintiff and the non-party 1 is without merit, and there is no reasonable ground to believe that the non-party

C. Scope of damages

The Defendant’s amount of compensation is 100,000,000, which is the amount that the Plaintiff received prior to the Korea Housing and Commercial Bank, a mortgagee, on the date of distribution on November 7, 2002, if the registration of the first right to lease on a deposit basis was not cancelled, and remaining, on the date of distribution on November 7, 2002. However, according to the evidence No. 7, No. 3-1, No. 3-2, and the testimony of Non-Party 4 as the witness of the first instance trial and the first instance trial, the Plaintiff was negligent by giving the opportunity to prevent or reduce damages due to the failure to promptly verify the copy of the register, so it is reasonable to limit the scope of the Defendant’s liability to 50%.

(d) Conclusion

Therefore, the defendant's damages amounting to 50,000,000 won (10,000,000 won x 50%) and damages for delay from November 7, 2002 (it cannot be deemed that damages have been actually incurred prior to the date of distribution) as to the scope of the defendant's obligations to pay damages to the plaintiff, until September 8, 2004, which is the date of this decision, 5% per annum under the Civil Act and 20% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings [the plaintiff shall be deemed to have been liable to pay damages at the rate of 25% per annum under Article 3 (1) of the former Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings (amended by Act No. 6868 of May 10, 203). However, with respect to the "interest rate prescribed by Presidential Decree" in the main sentence of Article 3 (1) of the former Act, the amended statutory interest rate of 2013.13.17.

4. Conclusion

Therefore, the plaintiff's claim of this case is accepted within the scope of the above recognition and the remaining claims are dismissed as without merit. Since the judgment of the court of first instance is unfair, it is revoked in part of the plaintiff's appeal and the part against the plaintiff as to the above order of payment is revoked and ordered to pay the above money to the defendant, and the remaining appeal by the plaintiff is dismissed. It is so decided as per Disposition.

Judges Choi Byung-chul (Presiding Judge)