208 Baz. 124505 Damage, Claim

A Bank, Inc.

1. B1 (Net 60 Years, Women)

2. B2 (At 55 Years, South Korea)

3. B3 (Age 81, South Korea)

4. Busan Metropolitan City B4

Law Firm Cheonghae, Counsel for the plaintiff-appellant

[Defendant-Appellant] Simban and Lee Jae-in

May 28, 2009

June 11, 2009

1. The plaintiff

A. Defendant B1, B2, and B3 shall pay the respective 30,000,000 won and 5% per annum from May 25, 2007 to December 5, 2008, and 20% per annum from the following day to the date of full payment;

B. Defendant Busan Metropolitan City shall pay the amount of KRW 9,00,00 among the money listed in Defendant B1, B2, B3, and each of the above paragraph A, and the amount of KRW 9,00,000 per annum from May 25, 2007 to June 11, 2009 and KRW 20% per annum from the next day to the date of full payment.

2. The plaintiff's remaining claims against the defendant B4 are dismissed.

3. Of the costs of lawsuit, the parts arising between the Plaintiff and Defendant B1, B2, and B3 are each borne by the Defendants, and 2/3 of the parts arising between the Plaintiff and Defendant B4 are borne by the Plaintiff, and the remainder is borne by the said Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

[Defendant B1, B2, and B3] Paragraph 1(a) of the Disposition

[Defendant B4] The Busan Metropolitan City Busan Metropolitan City (hereinafter referred to as "Defendant B4") pays to Defendant B1, B2, B3, and each Plaintiff 30,000,000 won as stated in paragraph (1) of this Article and the amount calculated by applying 5% per annum from May 25, 2007 to the date of final delivery of the complaint of this case, and 20% per annum from the next day to the date of full payment.

1. Basic facts

다음 각 사실은 원고와 피고 B1, B2, B4 사이에서는 갑 1호증의 1 내지 5, 갑 2호증의 1 내지 4, 을 1호증의 1, 2, 을 2호증, 을 4호증의 1, 2, 을 6, 7, 8호증의 각 기재, 을 5호증의 1 내지 4의 각 영상, ■■은행 법조타운지점장에 대한 사실조회결과에 에 변론 전체의 취지를 종합하여 이를 인정할 수 있고, 원고와 피고 B3 사이에서는 피고 B3이 민사소송법 제150조에 의하여 이를 자백한 것으로 본다.

A. Defendant B2 stolen the former wife’s resident registration certificate and the degree of seal impression, and on July 20, 2006, Defendant B2 caused female under Defendant B2 to obtain three copies of the C resident registration certificate (issuance on December 31, 2001) which was stolen by Defendant B4 to D who is a public official in charge of issuing the certificate of seal impression at the resident center under Defendant B4, and caused Defendant B1 to obtain three copies of the certificate of seal impression. However, the Plaintiff asserted that Defendant B1 applied for the issuance of the certificate of personal seal impression, while Defendant B1 applied for the issuance of the certificate of seal impression, it cannot be deemed that the applicant applied for the issuance of the certificate is the same as that of Defendant B1’s fingerprint electronic computer (No. 7) and that at the same time, C, etc. was issued with the same method as that of Defendant B1’s resident registration certificate.

B. At the time, a female under the above name was applied for the issuance of a certificate of seal imprint accompanied by Defendant B2. D, who is a public official in charge of issuing the certificate, was different from his name and face on the resident registration certificate or the resident registration computer system, and the background and family relation were asked to answer about the family relation with Defendant B2, who was her husband, while carrying out a sex operation. D, based on the resident registration computer system with his name and seal affixed by C on the computer page, was issued three copies of the certificate of seal imprint on the register for the issuance of a certificate of seal imprint, and issued three copies of the certificate of seal imprint to the non-name-registered female on the face. Defendant B2, B1, and B3 conspired with Defendant B1, who was in charge of issuing the certificate of seal imprint, provided that Defendant B had forged the certificate of seal imprinted and forged the certificate of seal imprinted with C’s back address as collateral, but the latter C-B resident registration certificate was forged with C-B's back address and forged with C-B's back address.

라. 2006. 7. 26. 피고 B1은 C로 행세하면서 원고의 대출담당 직원에게 위와 같이 위조된 C 명의의 주민등록증 및 거제2동 자치센타에서 발급받은 인감증명서, 주민등록등본 등을 제출하면서 C 명의의 여신거래약정서, 이 사건 부동산에 관한 근저당권설정계약서 등을 작성·교부하여 대출신청을 하였고, 피고 B3은 위 대출신청서에 연대보증인으로 서명날인하였으며, 이에 원고는 이 사건 부동산을 담보로 한 C에 대한 대출금 3,000만원에서 인지대, 근저당권설정 수수료 등을 공제한 29,608,400원을 피고 B1이 요구한 C 명의의 ■■은행 계좌(2006. 7. 20. 위와 같이 위조된 주민등록증에 의하여 개설)로 송금하였고, 피고 B1이 이를 인출하였다.

E. In relation to the above loan, the establishment registration of a neighboring mortgage in the Plaintiff’s name (hereinafter “the establishment registration of a neighboring mortgage in this case”) was completed with respect to the debtor C, the maximum debt amount of 39 million won, and C filed a lawsuit against the plaintiff for cancellation of the establishment registration of a neighboring mortgage in Busan District Court No. 2007Ga6343, July 24, 2008, which became final and conclusive on August 19, 2008, on the ground that the establishment registration of a neighboring mortgage in this case was completed without the delegation of its authority.

2. Occurrence of liability for damages;

A. Defendant B1, B2, and B3’s liability for damages

According to the above recognition, as Defendant B1, B2, and B3 conspireds to conduct it to Defendant B1 and deceptions the Plaintiff, Defendant B1, B2, and B3 are liable to compensate the Plaintiff for the damages incurred by the loan as joint tortfeasor.

B. Defendant B4’s liability for damages

(1) The public official's negligence

A certificate of seal imprint serves as an important function to verify the identity and intent of a trader in general transactions (Articles 1, 3, and 12 of the Certification of Seal Imprint Act) after a registrant’s report to an administrative agency (hereinafter referred to as “certification agency”) to use his/her seal imprint for a long-term juristic act. In order to prevent a registrant from reporting his/her seal imprint, the Certification of Seal Imprint Act requires a registrant to directly verify his/her identity by means of a resident registration certificate, a driver’s license, a certificate of disabled person, or a passport and to have the registrant sign or seal impression his/her identity (Article 7 of the Certification of Seal Imprint Act and Article 7 of the Enforcement Decree of the same Act). In issuing a certificate of seal imprint, if it is difficult for the applicant to verify his/her identity by using his/her resident registration certificate, etc. and if it is difficult for the applicant to verify his/her identity due to his/her resident registration certificate or other resident registration certificate, it is difficult for the applicant to issue a certificate of seal imprint by using electronic and electronic means (Article 13(2).5).

According to the above recognition, since Defendant B4’s certificate of personal seal impression issued C to women who misrepresented C, it is presumed that D was negligent in failing to perform his/her duty of care in issuing the certificate of personal seal impression, and each description of B 3 and 6 certificate alone is insufficient to recognize that D was not negligent due to the reversal of the above presumption. Rather, in light of the shape, such as the melting of the fingerprints (No. 1) affixed on the certificate of personal seal impression and the fingerprint in C’s electronic data (No. 2) on the resident registration computer system, it seems that a public official in charge of affairs of the certification of personal seal impression could have a doubt about its identity by the shore.

(2) Whether proximate causal relation exists

In light of the above legal principles, since a public official handling affairs of a certificate of seal imprint is obligated to perform his/her duties to prevent fraudulent acts arising from the issuance of a certificate of seal imprint that is anticipated to be used on the date related to rights and obligations with others, and if a person who entered into a contract with a holder of a certificate of seal imprint suffers damage therefrom, there is a proximate causal relation between the issuance of the above certificate of seal imprint and the damage therefrom. Such legal principles are as follows: (a) under the former Certification of Seal Imprint Act (amended by Act No. 6667 of March 25, 2002) and the former Enforcement Decree of the Certification of Seal Imprint Act (amended by Presidential Decree No. 17867 of December 31, 2002) to verify whether an applicant is the principal or his/her agent; and (b) a public official handling affairs of a certificate of seal imprint bears the duty to verify whether the applicant is the principal or his/her agent; and (c) a person who entered into a contract with the holder of a certificate of seal imprint issued by a false means of seal imprint 207 under the former Enforcement Decree.

According to the above recognition, the plaintiff trusted the certificate of seal impression issued unlawfully as above by negligence of D in the course of performing his duties and offered the real estate in this case as security, but suffered loss due to the cancellation of the registration of the establishment of a mortgage in the nearest area, and thus, there is a proximate causal relationship between D's negligence in the above duties and the plaintiff's loss.

(3) Establishment of joint tort

Defendant B4’s public official who belongs to Defendant B4 issued a certificate of personal seal impression to Defendant B2 by negligence in the course of performing his duties so that Defendant B1, B2, and B3 obtained a loan from the Plaintiff, and thus, Defendant B4 is liable for joint tort with Defendant B1, B2, and B3, and thus, Defendant B4 is liable for the damages incurred by the Plaintiff.

4. Scope of liability for damages

A. Determination as to Defendant B1, B2, and B3

According to the above facts of recognition, the damages suffered by the plaintiff due to the tort committed by the defendant B1, B2, and B3 are 30 million won of loans that include the stamp, etc. spent for the loan. Thus, the defendant B1, B2, and B3 are liable to compensate for all damages sustained by each plaintiff as joint tortfeasor by intention.

B. Determination as to Defendant B4

(1) As seen above, the Plaintiff suffered damages of KRW 30 million with loans to Defendant B1 who pretended to C. In principle, the joint tortfeasor is jointly and severally liable according to the ratio of liability assessed as a whole by all joint tortfeasor in relation to the victim. However, in assessing the victim's negligence for offsetting negligence, it cannot be said that there is no fault on the part of the victim, or that all of the joint tortfeasors cannot make any assertion of offsetting negligence (see Supreme Court Decision 2006Da7836, Jun. 14, 2007). In addition, in exceptional cases of the relationship with the victim in terms of justice and fairness, the ratio of liability between the Plaintiff and the joint tortfeasor is different (see Supreme Court Decision 91Da34233, Feb. 11, 1992). As seen in this case, it is not reasonable that Defendant B's joint tortfeasor is not in a position different from that of the Plaintiff and the victim, and as seen earlier, it is also reasonable that there is no objective or comparative negligence between the Plaintiff and the victim.

(2) As to the instant case, since the loan was made under the responsibility of the Plaintiff, a specialized financial institution, the risk of the loan is basically borne by the Plaintiff, and all important factors such as the loan amount and whether etc. are determined by the Plaintiff. ② When applying for the loan, Defendant B1’s domicile on the certificate of personal seal impression (No. 1-2) submitted to the Plaintiff and the certificate of resident registration (No. 1-4) in the forged name C’s resident registration certificate (No. 2-2), and the Plaintiff also paid attention in the course of preparing the loan document, it would have been likely to have been suspected of the forgery of the resident registration certificate if he paid attention to the Plaintiff. ③ Prior to the loan of this case, the Plaintiff did not engage in loan transaction with the Plaintiff, and the Plaintiff could not be ruled out that the Plaintiff could have been aware of the Plaintiff’s deception through the Plaintiff’s residence and the Plaintiff’s entire process of issuing the certificate of resident registration No. 44D, and the Plaintiff could not be held liable for damages due to Defendant B’s mistake or negligence.

(3) Therefore, Defendant B4, as a joint tortfeasor, has a duty to compensate for damages amounting to KRW 9 million (=30 million x 0.3) incurred by the Plaintiff as a joint tortfeasor.

5. Conclusion

Therefore, Defendant B1, B2, and B3 are liable to pay damages for delay calculated at the rate of 5% per annum as stipulated in the Civil Act from May 25, 2007 to December 5, 2008, which is the date of final delivery of the complaint of this case from May 25, 2007, and 20% per annum as stipulated in the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment. Defendant B4 is liable to pay damages for delay calculated at the rate of 9 million won from the amount stated in the above Paragraph (1) to the amount stated in the above Paragraph (1) from May 25, 2007 to the date of full payment. The remaining claims against Defendant B4 are without merit and are dismissed within the scope of 20% per annum as stated in the judgment of this case from May 25, 2007 to June 11, 2009.

Judge Kim Gin-hun