Plaintiff (Appointed Party) (Law Firm Dongdong, Attorney Park Young-soo, Counsel for the plaintiff-appointed party-appellant)

Defendant (Attorney Noh Jeong-sik et al., Counsel for the defendant-appellant)

April 20, 2017

Changwon District Court Decision 2016Kadan2075 decided September 23, 2016

1. Revocation of the first instance judgment.

2. The Defendant’s compulsory execution based on the No. 317 of the No. 313 No. 317 of the No. 2013 against the Defendant’s Plaintiff (Appointed Party) and the appointed Nonparty 2 on May 2, 2013 by a notary public of Nonparty 3’s office against the Defendant’s Plaintiff (Appointed Party) shall be denied only to the portion exceeding 12 million

3. With respect to the case of the suspension of compulsory execution by this Court 2017Kadan5, the ruling of the suspension of compulsory execution made on January 10, 2017 shall only authorize the portion exceeding 12,00,000 won.

4. All costs of the lawsuit shall be borne by the defendant.

5. Paragraph 3 can be provisionally executed.

The main text of the disposition Nos. 1 and 2 (the purport of the claim is to deny the compulsory execution against the plaintiff, but it is obvious that it is a clerical error in the purport that the defendant's compulsory execution against the plaintiff (the appointed party, hereinafter referred to as "the plaintiff") and the appointed party 2 (hereinafter referred to as "the plaintiff and the appointed party 2") are denied.

1. Facts of recognition;

A. Conclusion of a lease agreement with the Plaintiff and Nonparty 1

On December 26, 2012, Nonparty 1 entered into a lease agreement with the Plaintiff under the name of Nonparty 2, and leased the “○○○○○○○○○○” located in Jinju-si ( Address omitted) from the Plaintiff at KRW 50,00,000.

B. Defendant’s lending of money

1) On March 5, 2013, the Defendant remitted KRW 10,000,000 to the account of Nonparty 2’s community credit cooperatives.

2) The Defendant lent KRW 10,00,000 in total to Nonparty 1 on April 3, 2013, and KRW 12,000,000 in total to Nonparty 1’s agricultural account in April 4, 2013, and KRW 2,000,000 in total, to Nonparty 1’s agricultural account in the name of Nonparty 2 managed by Nonparty 1.

(c) Preparation of notarial deeds;

1) On April 3, 2013, Nonparty 1 (hereinafter the same shall apply) prepared and delivered to the Defendant a certificate of loan to the effect that “Nonindicted 2 borrowed KRW 30,000,000 from the Defendant.” Nonparty 1, as indicated in the foregoing paragraph (a), was liable for the repayment of deposit of KRW 50,000 and the Plaintiff’s wife, 2 (the Plaintiff’s agent; hereinafter the same shall apply) signed and sealed the certificate of loan (hereinafter “the certificate of loan”).

2) On the same day, Nonparty 1 and the Plaintiffs drafted a power of attorney to delegate all the powers to the Defendant to commission the preparation of a notarial deed regarding KRW 30,000,000 to the Defendant at the office of Nonparty 3, a notary public (hereinafter “instant power of attorney”).

3) On May 2, 2013, the Defendant appeared in the office of Nonparty 3, a notary public and the debtor as the agent of the joint and several sureties, and requested the preparation of a notarial deed. The notarial deed of a monetary loan contract for consumption (hereinafter “notarial deed of this case”) signed on May 2, 2013 at the above office (hereinafter “instant notarial deed”) was prepared as follows.

The Defendant borrowed KRW 30,00,00 on April 3, 2013 to Nonparty 2, and Nonparty 2 borrowed the same. Article 2 (Period and Method of Payment) Nonparty 2 (Period and Method of Payment) shall pay the said amount to the Defendant by June 3, 2013. The interest on the said amount of debt under Article 3 (Interest) shall be the amount at a rate of 30% per annum, and the interest shall be paid to the Defendant on June 26, 201. Article 8 (Joint Guarantee) 1. The Plaintiffs guaranteed the obligation under this Agreement, and agreed to pay the obligation jointly and severally with Nonparty 2. The maximum amount of the guaranteed obligation of the Plaintiffs is KRW 40,00,000. The guarantee period of the Plaintiffs is ten years. In the event that Nonparty 2 and the Plaintiffs fail to perform their monetary obligation under this Agreement, even if the compulsory execution is acknowledged, the compulsory execution is not immediately made.

D. The defendant's compulsory execution

Based on the instant notarial deed, the Defendant applied for a compulsory auction of real estate on the real estate owned by the Plaintiffs at the Changwon District Court, Jinwon Branch, Seoul District Court, 2016Taro 1358, and rendered a ruling of accepting the Defendant’s application on February 23, 2016.

[Ground of recognition] The fact that there is no dispute, Gap's evidence of 1 through 3, Eul's evidence of 1 through 4 (including each number in case of additional evidence), the non-party 1's testimony and the whole purport of pleading

2. The parties' assertion

A. The plaintiffs' assertion

On April 3, 2013, the Defendant loaned KRW 30,00,00 to Nonparty 1. The Plaintiffs agreed to guarantee the above debt to Nonparty 1 and prepared the instant loan certificate and the instant proxy letter stating “30,000,000,000,” and the interest of the proxy of this case and the maximum amount of the guarantor’s guarantee liability were blank. However, on May 2, 2013, the Defendant drafted the instant notarial deed by stating at will the blank portion of the proxy letter of this case delivered in advance from the Plaintiffs, “40,000,000,000, interest rate of KRW 30%.” However, on the basis of the instant notarial deed, the Defendant performed compulsory execution on real estate owned by the Plaintiffs. However, on April 3, 2013 and April 1, 2013, the Defendant loaned KRW 10,000 to Nonparty 10,000, and the amount of the above notarial deed should be extended to Defendant 2000,000.

B. Defendant’s assertion

On March 5, 2013, the Defendant lent KRW 22,00,000 to Nonparty 1, including KRW 10,000,000, which was remitted to Nonparty 2’s account. On August 18, 2015, the amount of KRW 3,00,000,000, which was lent to the Plaintiff on August 18, 2015, also was included in the principal of the claim based on the instant notarial deed. As such, the amount of the Defendant’s joint and several liability obligation against the Defendant based on the instant notarial deed is the amount equivalent to the interest calculated at the rate of KRW 25,00,000 per annum and 30% per annum.

3. Determination on the scope of validity of the Notarial Deed of this case

A. Relevant legal principles

In general, it is an example that a part of a document is signed and sealed and delivered in the state of completion. As such, there is an blank space, which is the blank space at the time of delivery of the document, and the fact that it was supplemented after the fact that a part of the document was supplemented after the fact that there was an ex post facto delegation, the party asserting the effect of the blank space is responsible for proving the fact that the blank space was supplemented by the authority duly entrusted. In this regard, in a case where the contents of delegation of authority or the power of delegation were made out, the contents of the delegated act and the scope of the authority must be determined carefully and carefully by examining not only the contents of the text, such as the power of delegation, but also the purpose and preparation of the delegated act. In particular, if some of the contents indicated in the power of delegation were filled with a blank space, then the mandatory is bound to prove that it was supplemented by the authority duly delegated by the mandatory. Accordingly, if an obligee is entrusted with the preparation of a notarial deed of a monetary loan contract as a proxy of the obligor, it is not sufficient to prove that the obligee or 2010.

B. As to the part on the maximum amount of interest and guaranteed liability

1) Whether the plaintiffs issued a letter of delegation with blanks

In full view of the evidence No. 2-1, No. 11, Eul evidence No. 11, Eul evidence No. 1, testimony of non-party No. 1, and the purport of the whole pleadings, it is acknowledged that the loan certificate of this case does not contain interest rate, interest payment date, and leaves public space. The maximum amount of the joint and several sureties's surety's surety's surety's surety's surety's surety's surety's surety's surety's surety's surety's loan certificate of this case and power of attorney, and the defendant requested interest of 5% per month to non-party No. 1, but the non-party No. 1 did not have any explicit agreement on interest rate between the non-party No. 1 and the defendant until the time when the loan certificate of this case and power of attorney were prepared.

In addition, in light of the following circumstances recognized in full view of the facts recognized as above and the purport of the entire pleadings, the fact that Nonparty 1 and the plaintiffs affixed their seals to the delegating column and the delegating (debtor, joint guarantor) shall be fully recognized, with the content indicated in the column of the amount borrowed and the delegating (debtor, joint guarantor) of the letter of delegation of this case, and the interest and the guaranteed debt portion shall be affixed to each delegating column and affixed their seals to

① Nonparty 1 and the Defendant did not explicitly agree on the interest, and did not state the interest in the instant loan instrument, which is, the document granting the right to prepare a notarial deed, i.e., the document granting the right to write an interest rate of 30% per annum only on the letter of delegation of the instant case, is considerably exceptional in light of transaction practices.

② In the absence of an agreement on interest between the Defendant and Nonparty 1 of the primary debtor as above, the instant loan certificate does not include any description on the maximum amount of the guaranteed debt, and only on the letter of delegation of the instant case, the amount plus KRW 10,000,000 for the principal amount plus KRW 10,000,000 for the principal as the maximum amount of the guaranteed debt is considerably exceptional.

③ The Plaintiff and Nonparty 1 affixed seals to each of the parts indicated in “three million won,” separate from the seals affixed to the delegation column of the instant delegation. The Plaintiff and Nonparty 1 affixed seals to each of them. In the part indicated in the interest and the maximum amount of guaranteed liability, the Plaintiff and Nonparty 1’s seal is not affixed.

2) Whether the Defendant has the right to fill the blank

In light of the above legal principles, as long as it is recognized that there was a blank blank part among the power of attorney in this case, the defendant is responsible for proving that the blank part was filled by the authority duly delegated. However, the evidence submitted by the defendant alone is insufficient to recognize that there was an agreement between the plaintiffs and the defendant on the interest rate of 30% per annum and the maximum amount of the guaranteed liability, or that the plaintiffs ordered the defendant to supplement the blank part of the power of attorney in this case, and there is no other evidence to acknowledge this otherwise.

Therefore, it cannot be deemed that the authority to prepare a notarial deed was delegated to the interest and the maximum amount of guarantee liability. Therefore, it is reasonable to view that the portion concerning interest and the maximum amount of guarantee liability in the notarial deed of this case is invalid since it

C. As to the principal portion

1) Scope of principal of the loan

On April 3, 2013, Nonparty 1 prepared and delivered the instant loan certificate to the Defendant stating that “Nonindicted 2 borrowed KRW 30,000,000 from the Defendant.” The Plaintiffs signed and sealed the instant loan certificate in column as joint and several sureties, and the Defendant prepared the instant notarial deed upon delegation by Nonparty 1 and the Plaintiffs as seen earlier. However, in light of the following circumstances recognized by Nonparty 1 and Nonparty 1’s testimony and arguments, it is insufficient to recognize the Defendant’s principal amount of the Defendant’s claim based on the instant notarial deed as KRW 30,00,000,00,000, based on the notarial deed, was the aggregate of the amounts remitted by Nonparty 1 to the agricultural bank account in the name of Nonparty 2 managed by the Defendant. Rather, it is reasonable to deem the principal of the claim based on the notarial deed as KRW 12,100,000,000, which is the aggregate of the amounts remitted by Nonparty 1 to the agricultural bank account in the name of Nonparty 2.

① Despite the fact that the borrowed amount on the loan certificate of this case was KRW 30,000,00, the Defendant, after drawing up the loan certificate of this case, remitted the total of KRW 12,000,000 to the agricultural bank account in the name of Nonparty 2 on April 3, 2013 and April 4, 2013.

② Nonparty 2’s account transferred KRW 12,00,000 to Nonparty 12 was an account managed by Nonparty 1. On the other hand, Nonparty 2’s account of Nonparty 2, who transferred KRW 10,000,000 on March 5, 2013, prior to the preparation of the instant loan certificate, was managed by Nonparty 5, a person living together with Nonparty 4.

③ Nonparty 4 was sentenced to a suspended sentence of two-year in August, 200, on the grounds of the crime of deceiving the Defendant around March 4, 2013 and receiving KRW 10,000,00 from Nonparty 5 living together with the Defendant to the account in the name of Nonparty 2 managed by Nonparty 5 living together with the Defendant.”

④ Although Nonparty 1 made a statement to the effect that “10,00,000 won is to be repaid to the Defendant” at an investigative agency in connection with the above criminal case of Nonparty 4, Nonparty 1 was present as a witness, it is difficult to deem that Nonparty 1 agreed with the Defendant to substitute the above KRW 10,000,000, which was used by Nonparty 5 with the remittance by Nonparty 5 (in light of the above circumstances, it is difficult to believe that Nonparty 1’s testimony by Nonparty 6 of the first instance trial to the effect that Nonparty 1 had prepared the instant loan certificate, including the above KRW 10,00,000,000, in consideration of the above circumstances).

2) As to the defendant's argument

Although the Defendant asserted that KRW 3,00,000 lent to the Plaintiff on August 18, 2015 includes the principal of the claim based on the instant notarial deed, the Defendant’s partial testimony of Nonparty 6 of the first instance trial witness is difficult to believe as is, and the remainder of the evidence submitted by the Defendant alone is insufficient to recognize it, and there is no other evidence to acknowledge it. Rather, the Plaintiff’s obligation based on the instant notarial deed is a joint and several liability, while the Plaintiff’s obligation based on the notarial deed is a joint and several liability, the nature of each obligation differs from each other as the principal obligation, and ② Nonparty 1, the principal obligor based on the instant notarial deed, consented to include KRW 3,00,000 in its own obligation based on the instant notarial deed, it is reasonable to deem that the above KRW 3,00,000 does not constitute the principal of the claim based on the instant notarial deed. Therefore, this part of the Defendant’s assertion is without merit.

D. Sub-committee

Therefore, since the notarial deed of this case has an effect as executive title only for KRW 12,00,000 of the principal of the loan without setting interest and the maximum amount of the guaranteed obligation, compulsory execution based on the notarial deed of this case may not be allowed only for the portion exceeding KRW 12,00,000.

4. Conclusion

Therefore, the plaintiff's claim is justified, and the judgment of the court of first instance is unfair with different conclusions, and it is so decided as per Disposition by cancelling it and accepting the plaintiff's claim.

[Attachment Form 6]

Judges Kim Jong-sung (Presiding Judge)