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1. The part concerning the claim for the confirmation of existence of an obligation among the lawsuits in this case shall be dismissed.
2. The defendant's notary public against the plaintiff.
Reasons
1. In a lawsuit seeking confirmation as to the legitimacy of the part of a claim for confirmation of existence of an obligation, the benefit of confirmation is recognized only when the Plaintiff’s right or legal status is the most effective and appropriate means to eliminate the risk of apprehension (see, e.g., Supreme Court Decision 2016Da21643, Mar. 30, 2017). The mere purport of seeking refusal of compulsory execution based on the instant notarial deed is to eliminate the risks existing in the Plaintiff’s legal status. The filing of seeking confirmation of existence of an obligation based on the instant notarial deed is difficult to be deemed the most effective and appropriate means to eliminate the risks existing in the Plaintiff’s legal status. Therefore, this part of the claim is unlawful as there is no benefit of confirmation.
2. Basic facts
A. 1) On April 28, 2005, D borrowed KRW 1,50,000 from the Defendant and agreed to pay KRW 30,000 per day for 60 days each time. At the time, the Defendant paid KRW 1,350,000, after deducting KRW 150,000 per day from the Plaintiff as a prior interest. The Plaintiff jointly and severally guaranteed the above obligation, and issued the Defendant a certificate of personal seal impression issued on the same day, his signature and seal impression, and the power of attorney affixed the same date. 2) On October 10, 2005, the Defendant drafted the instant notarial deed in the capacity of each agent of the Plaintiff and D as follows.
Article 1 (Purpose) The Defendant lent 1,900,000 won to D on April 28, 2005, and D borrowed this.
Article 2 (Period and Method of Performance)D determines to pay the principal of this case until October 28, 2005.
Article 3 (Interest) Interest shall be 60% per annum, and shall be paid at the 28th day of each month.
When Article 5 (Arrears Damages) D delays the repayment of principal or interest, the damages for delay shall be paid to the defendant at the rate of 60% per annum for the transferred principal or interest.