[1] Whether there is a proximate causal relationship between the act of unlawful disposal of real estate and the act of final buyer's registration following the transfer before the real estate and the loss suffered by the mortgagee who lent the money (affirmative)

[2] In the case of the above [1], the scope of damage suffered by the mortgagee

[3] In the case of the above [1] Whether the existence of a debtor's ability to repay the loan affects the occurrence of damages (negative)

[1] In a case where the employees of the Farmland Improvement Association unlawfully dispose of the land owned by the association by forging relevant documents, and the transfer registration for invalidity of the cause therefrom is made, it could be easily anticipated that the third party would incur property damages by lending the money as security by trust in the registration of the last registrant. Thus, barring any special circumstance, there is a proximate causal relationship between the illegal act of the employees of the association and the damage of the mortgagee, and the causal relationship is not interrupted solely on the ground that the mortgagee did not make a transaction, such as the creation of security directly with the employees of the association.

[2] In the case of paragraph (1) of the above Article, a third party granted a loan to the obligor with the money after completing the registration of establishment of a neighboring mortgage on the land illegally disposed of by reliance on the registration of transfer of the last registrant. If the farmland improvement association filed a lawsuit against the mortgagee for the cancellation of the registration against the mortgagee and the judgment in favor of the partnership became final and conclusive, the ordinary damages suffered by the mortgagee due to the tort committed by the employees of the above association are the amount contributed to the belief that the registration of transfer of the last titleholder is valid and is i.e., the amount contributed to the obligor within the scope of the maximum debt amount within the limit of the value of the land

[3] In the case of paragraph (1) above, the circumstance that a mortgagee was unable to acquire a security right to the land from the beginning, and only after the judgment ordering the cancellation of the above registration becomes final and conclusive does not lose a security right to the land, and thus, the circumstance that a debtor has the ability to repay the loan does not constitute any obstacle to the above damage.

[1] Articles 756 and 763 of the Civil Act / [2] Articles 393, 756, and 763 of the Civil Act / [3] Articles 756 and 763 of the Civil Act

[1] Supreme Court Decision 75Da322 delivered on January 27, 1976 (Gong1976, 8947), Supreme Court Decision 92Da44312 delivered on April 27, 1993 (Gong1993Ha, 1550), Supreme Court Decision 94Da36285 delivered on December 27, 1994 (Gong1995Sang, 6677) / [2/3] Supreme Court en banc Decision 66Da503 delivered on May 3, 196 (No 14-2, 5) (Gong192, 2235) / [2] Supreme Court Decision 91Da3070 delivered on June 23, 192 (Gong192, 2235) / [2] Supreme Court Decision 197Da173738 delivered on March 14, 1978

Plaintiff Farmland Improvement Association (former Farmland Improvement Association before its modification) (Attorney Kim Jong-ju, Counsel for the plaintiff-appellant)

Daegu Busan Credit Union (Attorney Im Sung-sung et al., Counsel for defendant-appellant)

Daegu High Court Decision 94Na3682, 3699 delivered on May 10, 1996

The part concerning the counterclaim among the judgment below is reversed, and that part of the case is remanded to the Daegu High Court.

As to the Grounds of Appeal

1. According to the reasoning of the judgment below, the court below rejected the non-party 1's claim for the registration of the establishment of the above non-party 1 and the non-party 2's maximum amount of the non-party 1 and the non-party 2's official seal on the non-party 1 and the non-party 1 who were in charge of the disposal and management of the non-party 1 and the non-party 2's non-party 1's non-party 1 and the non-party 2's non-party 9's non-party 9's non-party 1 and the non-party 2's non-party 9's non-party 9's non-party 1's non-party 1 and the non-party 2's non-party 1 and the non-party 2's non-party 9's non-party 1 and the non-party 2's non-party 9's non-party 1 and the non-party 2's non-party 9's non-party 1's non-party 9's own land.

2. However, the above determination by the court below is difficult to accept for the following reasons.

A. If the facts are as determined by the court below, it can be easily anticipated that if the land in this case was transferred entirely due to the illegal disposition such as Nonparty 1, who is an employee of the Plaintiff Union, and the registration of transfer of invalidity of the cause therefrom was made, the third party would incur property damage by reliance on the registration of the last registrant and lending the money as security by the third party. Thus, barring any other special circumstances, there is a proximate causal relation between the illegal act committed by the employees of the Plaintiff Union and the Defendant’s damages, and the causal relation may not be interrupted solely on the ground that the Defendant did not engage in a transaction such as the creation of security directly with the employees of the Plaintiff Union.

B. Property damage caused by an illegal act refers to the difference between the property condition that would have existed without the illegal act and the current property condition that caused the illegal act (see, e.g., Supreme Court en banc Decision 91Da33070, Jun. 23, 1992). As determined by the court below, the non-party 1, etc., who is an employee of the Plaintiff Union, disposes of the land of this case to the majority of the citizens by forging the relevant documents, and the non-party 1, etc. again transfers the land to the majority of the citizens without the non-registration. However, the ownership transfer registration was made in order from the Plaintiff Association through the Han Ho-ho, the Hanho and Kim Jong-ok, a title trustee, the title holder of the last registration, trusting the transfer registration of the last registrant to the above land, and the defendant loaned the money to the debtor such as the highesthoho-ho, etc., and then the judgment of winning the registration of cancellation of the right to collateral security to the extent of the damages suffered by the defendant due to the above act.

C. Nevertheless, the court below rejected the defendant's counterclaim on the ground that there is no proximate causal relation between the tort of Nonparty 1, etc. and the damage caused by the defendant's assertion, or even if the family causal relation can be acknowledged, the registration of creation of a mortgage in the name of the defendant became null and void, and it cannot be deemed that the damage equivalent to the loan was incurred as soon as the loan amount becomes null and void due to the lack of any other property other than the real estate on which the right to collateral security was established. Accordingly, the court below rejected the defendant's counterclaim on the ground that the damage was not caused as alleged by the defendant. The court below erred in the misapprehension of legal principles as to the causation, the occurrence of damage and the scope thereof, which affected the conclusion of the judgment.

3. Therefore, the part of the judgment of the court below concerning the counterclaim shall be reversed and remanded to the court below. It is so decided as per Disposition by the assent of all Justices who reviewed the appeal.

Justices Park Jong-chul (Presiding Justice)