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Reasons
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(영문) 서울동부지방법원 2019.05.31 2018나27937
청구이의
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1. The part of the judgment of the first instance against the plaintiff shall be revoked.

2. The Defendant’s notary public against the Plaintiff is a law firm C, 2015.

Reasons

1. The basic facts;

2. The grounds for this part of the defense prior to the merits are as stated in the corresponding part of the judgment of the court of first instance, except for the case in which the “Plaintiff” in Section 14 of the judgment of the court of first instance is brought to “Defendant”, and therefore, they are cited in accordance with the main sentence of Article 420 of the Civil Procedure Act.

3. As to the merits

A. The Plaintiff’s assertion (1) although the Defendant did not borrow KRW 65,00,000 from the Defendant, the Plaintiff prepared the instant notarial deed with a false statement that the Plaintiff borrowed KRW 65,00,000 from the Defendant despite having conspired with the Defendant or having been aware of the abuse of D’s power of representation. As such, the instant notarial deed is null and void, and compulsory execution based on the instant notarial deed must be denied.

(2) Even if the Defendant lent KRW 65,00,000 to the Plaintiff as stated in the instant notarial deed, D repaid KRW 35,000,000 to the Defendant using his account with his wife K.

(3) In addition, the Defendant’s receipt of dividends of KRW 13,874,769 on September 21, 2017 in Seoul East Eastern District Court case, which is a compulsory execution procedure, based on the instant notarial deed null and void, made unjust enrichment without any legal ground. Therefore, the Defendant shall return to the Plaintiff the amount of KRW 13,874,769 and the delay damages therefrom.

B. (1) Determination (1) The act performed by the representative director of the relevant legal doctrine within the scope of his/her representative authority shall be deemed valid as an act of the company even if the representative director abused his/her authority for the purpose of pursuing his/her own interest or a third party, regardless of the company’s profit. However, if the other party to the act knew or could have known the representative director’s intention, the act constitutes an abuse of D’s representative authority (see, e.g., Supreme Court Decisions 2003Da34045, Mar. 26, 2004; 2014Da210777, Nov. 27, 2014; 2014Da6673, Sept. 10, 2015).2)

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