2013 Gohap34193 Mutual Aid

Hyo

Attorney White-chul et al., Counsel for the defendant

Korean Certified Judicial Scriveners Association

Seoul Gangnam-gu 151 - 31 Certified Judicial Scriveners Center

Representative Association President* *

Attorney Park Jae-ok et al., Counsel for the plaintiff-appellant

July 19, 2013

August 13, 2013

1. The defendant shall pay to the plaintiff 200,000,000 won with 20% interest per annum from May 11, 2013 to the day of complete payment.

2. The costs of the lawsuit shall be borne by the defendant.

3. Paragraph 1 can be provisionally executed.

The order is as set forth in the text.

1. Basic facts

A. On March 7, 2008, Kim ○, the husband of the Plaintiff, was proposed to the effect that ○○○, the Plaintiff’s husband, left only the remainder payment after ○○○ purchased from ○○○○○○○, the highest level of * * 4 the forest * * 36,09mi (hereinafter “instant land”). If ○○, ○○, the Plaintiff’s husband, borrowed money to ○○○ within a gold day to pay the remainder, ○○, the Plaintiff was entitled to register the ownership of the instant land at the same time as ○○○○, the ownership transfer of the instant loan was completed, and ○○, the office of ○○○, the cause of the office of ○○ Certified Judicial scrivener, the Plaintiff’s establishment of a mortgage on the instant land at the time of the establishment registration of a mortgage on the instant land was not made in the name of ○○○, but the Plaintiff’s application was not made in the name of ○○ on March 7, 2008.

3) On March 7, 2008: Around 10, 2008: Around 18: Around 10, 2008, regular ○○ demanded by the Plaintiff’s employee to present the payment of registration tax and the receipt for the purchase of national housing bonds for each of the above registrations, and suggested the receipt number of each of the above applications for registration to the Plaintiff’s employee by facsimile because he/she has another employee of the certified judicial scrivener’s office.

4) On March 7, 2008, the Plaintiff remitted the total amount of KRW 480,00,000,000 to a deposit account, such as Hong○, etc. at around 20.20.

5) On March 10, 2008, on March 7, 2008, 2008, Ma○○ completely withdraws an application for each of the registrations filed on March 7, 2008, Ma○○ purchased national housing bonds after paying the registration tax required for filing an application for registration, and subsequently filed an application for each of the registrations again. Accordingly, the registration of transfer of ownership in the name of Hong○○ on the same day (hereinafter referred to as “the

The registration of the establishment of a neighboring mortgage under the name of the plaintiff (hereinafter referred to as the "registration of the establishment of a neighboring mortgage of this case") was completed in order.

6) Since then, since the registration of ownership transfer in this case was revealed to have been completed by a certificate of the most forged seal impression and a certificate of registration, the registration of ownership transfer in this case was cancelled ex officio as of March 14, 2008, and the registration of ownership transfer in this case was cancelled as of March 17, 2008, respectively.

B. Plaintiff’s lawsuit and final judgment 1) The Plaintiff filed a lawsuit for damages against Hong○○, Ma○○, and Gay○○, etc. with Seoul Central District Court 201* Gohap* 00* 2*2*. On January 18, 2012, the above court conspired with Hong○, etc. to obtain the above loan from the Plaintiff on the ground that Hong○, etc. did not explain that the payment of registration tax, etc. was made at the time of filing an application for registration of the Plaintiff on March 7, 2008 and that it was not a purchase of national housing bonds, it is difficult to deem it as tort solely on the ground that this was not clearly explained that Ma○○ was not a person responsible for registration in relation to the application for registration of ownership transfer of this case, and such negligence did not implement the procedure for identification of ○○, the person responsible for registration, and that negligence was Red○,

Since it was used in the act of defraudation of borrowed money, Park○○ is liable for compensating the damages suffered by the Plaintiff (Provided, That on the grounds that ○○ is limited to 30% of the total amount of damages, etc., ○○, etc., on the ground that ○○, etc. is limited to 30% of the total amount of damages), the judgment was rendered that 144,000,000 won out of the above money, etc. and 144,000,000 won among the above money, and damages for delay thereof, ○○, etc., and that ○○, respectively, paid to the Plaintiff, ○○, etc., ○○, respectively, and dismissed the remaining claims

2) Accordingly, the plaintiff and Gab○ appealed (Seoul High Court 201** 7* 5*). On September 6, 2012, 2012, the appellate court rendered a judgment that "Sab○ and Gab○, in collusion with Hong○ et al., obtained the above loan, and Parkb○ was liable for damages sustained by the plaintiff due to the illegal act in the course of performing his/her duties as the employer of Gab○○, who is the employer of Gab○○○, and is liable for damages incurred by the plaintiff due to the illegal act (limited to 70% of the total amount of damages)" on the ground that "Yab○ and Gab○ et al., paid 36,00,000 won to the plaintiff, respectively, and damages for delay."

3) Although Ma○○ and Ma○○ filed an appeal against the appeal (Supreme Court Decision 201*Da*6 * 3*), January 2013.

24. The final appeal was dismissed, and the final judgment of the above appellate court was final and conclusive on ○○ and ○○○.

(c) Criminal complaints;

On the other hand, the plaintiff filed a criminal complaint against the violation of the Act on the Aggravated Punishment, etc. of Specific Economic Crimes (Fraud) on April 2008, such as Hong○, Jeong○, and Park ○, etc. However, on August 19, 2008, the plaintiff was sentenced to the suspension of indictment or the suspension of witness on the ground that the location of Hong○○ was unknown, and the decision was issued on June 5, 2013.

D. The defendant's status and the relationship with Park ○-○

1) Article 26 of the Certified Judicial Scriveners Act provides that "where a certified judicial scrivener causes damage to his/her property by intention or negligence in performing his/her duties, he/she shall be liable for such damage (Paragraph 1), and a certified judicial scrivener shall subscribe to performance guarantee insurance or mutual aid under Article 67 as prescribed by the Supreme Court Regulations in order to guarantee liability for damages under paragraph 1, and Article 67 (1) of the same Act provides that "the Korean Certified Judicial Scriveners Association (Defendant) may carry out mutual aid projects as prescribed by the rules of the Korean Certified Judicial Scriveners Association in order to guarantee liability for damages of a certified judicial scrivener under Article 26, and the first sentence of paragraph 2 of the same Article provides that "the Korean Certified Judicial Scriveners Association shall establish mutual aid regulations and obtain approval from the Chief Justice in order to carry out mutual aid projects under paragraph 1." The main provisions of the defendant's rules and the provisions of the defendant's damage compensation deduction approved by the Chief Justice of the Supreme Court are as follows

Association Regulations

Article 8 (Mutual Aid) The Association shall carry out the Mutual Aid Project in order to guarantee liability for damages to the clients of its members. Matters concerning the implementation of the Mutual Aid Project shall be prescribed by the provisions of the Mutual Aid for Damage Compensation.

Article 2 (Compensation Mutual Aid Association)

(1) A certified judicial scrivener who has joined a local council and fails to purchase performance guarantee insurance prescribed in Article 38 of the Enforcement Rule of the Certified Judicial Scriveners Association Act shall constitute the Korean Certified Judicial Scriveners Association.

Article 11 (Payment of Mutual Aid Money)

(1) If a member causes property damage to the mandator intentionally or by negligence while performing his/her duties, the member shall be paid mutual aid money to the mandator from the Fund.

(2) The amount of the mutual aid fund under paragraph (1) shall be limited to 200 million won per member for one year.

Article 12 (Claim, etc. for Mutual Aid Fund)

(1) A person who intends to be paid mutual aid money under Article 11 shall file a claim with the Chairperson after verifying the existence of a right to claim damages against a current or former member according to the authentic copy of executive titles, such as final and conclusive judgment, or the written agreement of the Dispute Mediation Committee of the relevant local council, via the chairperson of

2) Park○-○ was registered with the Defendant Association and affiliated with the Seoul Southern District Certified Judicial Scriveners Association, and did not subscribe to performance guarantee insurance under Article 38 of the Enforcement Rule of the Certified Judicial Scriveners Act.

E. Plaintiff’s claim for mutual aid money and Defendant’s refusal to pay

On February 18, 2013, which was after the judgment on damages as stated in the foregoing Paragraph (b) became final and conclusive, the Plaintiff claimed the Defendant for the payment of the mutual aid money. However, on April 11, 2013, the Defendant rejected the payment of the mutual aid money on the ground that the Defendant filed an individual rehabilitation claim against the Plaintiff’s damage claim, and the court rendered a decision such as an order to prohibit the repayment of individual rehabilitation claims (Seoul Central District Court 2013da3950).

【Uncontentious facts, Gap’s entries in Gap’s evidence Nos. 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, and 11, and the purport of the whole pleadings

2. Determination as to the cause of action

According to the above basic facts, Park Jong-○, a certified judicial scrivener, shall be liable for damages against the plaintiff as the employer of full-time ○○, which is the cause of the affairs of the certified judicial scrivener office. A certified judicial scrivener who has joined the Local Certified Judicial Scriveners Association, who has not subscribed to the performance guarantee insurance under Article 38 of the Enforcement Rule of the Certified Judicial Scriveners Act, shall be the member of the Korean Certified Judicial Scriveners Association. Park Jong-○, a certified judicial scrivener, who has joined the Seoul Southern Local Certified Judicial Scriveners Association, did not subscribe to the above performance guarantee insurance. Therefore, barring any special circumstance, the defendant is obliged to pay to the plaintiff 36,00,000,000 won which is the limit of the amount of damages suffered by the plaintiff, and damages for delay at the rate of 20% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from May 11, 2013 to the day of full payment.

3. Determination on the defense, etc.

A. Determination on the completion of extinctive prescription defense

1) Defendant’s defense

The plaintiff's right to claim mutual aid money is subject to the application of Article 664 and Article 662 of the Commercial Act by applying mutatis mutandis Articles 66 and 662, and the starting point of the statute of limitations is the starting point of the establishment registration of the neighboring mortgage of this case.

14. or on March 4, 2011, when the Plaintiff filed a criminal complaint against Park○, etc. on or around April 2008, or at latest around March 4, 201, the Plaintiff filed a lawsuit claiming damages against Park○○, etc. As such, the extinctive prescription of the said claim had already expired before the instant lawsuit was filed.

2) The judgment. A) First of all, as to the period of extinctive prescription of the Plaintiff’s claim for mutual-aid, the Defendant’s mutual-aid system is a guarantee insurance system that guarantees liability for a certified judicial scrivener to be borne by the parties to a transaction due to his tort or non-performance of obligation even though it is not an insurance business under the Insurance Business Act. Thus, it is reasonable to deem that the period of extinctive prescription is two years by applying mutatis mutandis the provision of Article 664 of the Commercial Act regarding the extinctive prescription of the claim for mutual-aid provided by the mandator to the Defendant (see Supreme Court Decision 2006Da27086, Aug. 24, 2006).

B) Next, as seen earlier, the Defendant’s mutual aid system has the nature of guarantee insurance to guarantee the liability of a certified judicial scrivener for damages to be borne by the parties to a transaction due to his tort or nonperformance. Thus, if the claimant of mutual aid cannot confirm the occurrence of a mutual aid accident for reasons such as where it is objectively unclear whether the mutual aid accident occurred or not, the case of insurance claim is insurance claim.

As seen above, the statute of limitations for the claim for mutual aid should be interpreted to run from the time when the claimant for mutual aid knew or could have known the occurrence of the accident (see Supreme Court Decision 2010Da101776, Sept. 27, 2012). As seen in the above basic facts, the registration of the establishment of the neighboring mortgage of this case shall run on March 3, 2008.

14. Around April 2008, the Plaintiff filed a criminal complaint against Park○, etc., but around that time, or during the course of the lawsuit claiming damages as stated in paragraph (b) of the said basic facts filed by the Plaintiff against Park○○, the Plaintiff argued that Park○ was not responsible for filing an appeal, appeal, etc. against the first instance court and the appellate court’s judgment recognizing liability for damages against himself/herself, and that in the relevant criminal complaint case, it appears that it was objectively unclear whether it is possible to recognize liability for damages against Park○ as to the cancellation of the registration of creation of a mortgage and the fraud of loans in the instant lawsuit seeking damages, and that the Plaintiff knew or could have known the occurrence of the accident only when the judgment recognizing the liability for damages of Park○○○ was finalized. Accordingly, the Plaintiff’s claim for mutual aid money was finalized on March 2013, 2013, which is the date the said judgment became final and conclusive.

1. The extinctive prescription will run from 24.24.

C) However, it is evident that the instant lawsuit was brought on May 3, 2013, before the lapse of two years from January 24, 2013, and thus, the Defendant’s defense is without merit.

B. Determination as to the prohibition of performance, etc. on the application for commencement of individual rehabilitation procedure by Park○-○

1) The defendant's assertion

St. The defendant's mutual aid system is a kind of guarantee system, which prohibits anyone from receiving repayment or demanding repayment of individual rehabilitation claims until the above court rendered a decision on March 8, 2013 upon application for commencement of individual rehabilitation procedure under the Seoul Central District Court 201***** 9* 5*. The defendant's mutual aid system is to guarantee the defendant, who is the guarantor, and the effect of the above prohibition of repayment is to guarantee the defendant. When the defendant pays mutual aid money to the plaintiff, it is impossible by the prohibition of repayment. Furthermore, in the future individual rehabilitation procedure, the defendant's liability for paying mutual aid money can be changed. Thus, the plaintiff's claim is unfair.

2) Determination

Comprehensively taking account of the respective descriptions and arguments in Eul evidence Nos. 1 and 2, it may be acknowledged that Park○-○ was subject to the Seoul Central District Court 201* Opening 9* 5* by filing an application for commencing individual rehabilitation procedures to prohibit all acts, etc. of receiving repayment or demanding repayment of individual rehabilitation claims until the decision on the above application is made. However, even if Park○-○ rendered a decision prohibiting repayment of individual rehabilitation claims in the individual rehabilitation procedures applied by Park○-○○, the defendant was unable to exercise his right to claim reimbursement against Park○-○, or the defendant was exempted or mitigated from his liability for damages against the plaintiff at Park○-○-○ in the above individual rehabilitation procedures, such circumstance alone does not affect the validity of the above decision prohibiting repayment, nor affect the existence and scope of the defendant's liability for paying mutual-aid money against the plaintiff, and there is no other evidence to acknowledge this otherwise, the above argument by the defendant is without merit.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted for the reasons and it is so decided as per Disposition.

Judges - Judges - Resting

Judges Cho Young-jin

Judges Yu Sung-sung