2015 Ghana6910 Damage (as defined)

A person shall be appointed.

B

March 10, 2016

April 28, 2016

1. The plaintiff's claim is dismissed.

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

The defendant sent 10,00,000 won to the plaintiff and a copy of the complaint of this case from October 19, 2015 to the plaintiff

The amount calculated by 5% per annum and 15% per annum from the next day to the day of full payment.

H. D. D.

1. Basic facts

A. The defendant is a certified judicial scrivener who operates a certified judicial scrivener office B (hereinafter referred to as the "certified judicial scrivener office of this case") and C works as a certified judicial scrivener office of this case.

B. On May 10, 2014, D drafted a loan certificate with a loan amount of KRW 20 million to the Plaintiff.

C. On October 22, 2014, D completed the registration of creation of a collateral security right with a maximum debt amount of KRW 4,580,000 for a passenger car (hereinafter referred to as “passenger car in this case”) in its Espoland (hereinafter referred to as “Mog Capital”) against Hyundai Capital Co., Ltd. (hereinafter referred to as “Mogn Capital”).

D. Hyundai Capital: (a) on February 6, 2015, filed an application for voluntary auction for the instant car; (b) on February 6, 2015, the Chuncheon District Court F (hereinafter “instant auction case”); and (c) accordingly, on February 9, 2015, the registration of seizure was completed on the instant car.

E. On February 26, 2015, D found the office of the instant certified judicial scrivener and requested C to file an application for provisional seizure against the instant passenger vehicle with the Plaintiff as the obligee. Accordingly, C filed an application for provisional seizure against a motor vehicle with the Chuncheon District Court, and on February 27, 2015, C was decided to provisionally seize the instant passenger vehicle with the Plaintiff, debtor D, and claim amounting to KRW 20 million as the loan claim of the Plaintiff, debtor, and claim amounting to KRW 20 million.

F. In the instant auction case, the executing court decided on April 28, 2015 the firearms to demand a distribution, but the Plaintiff did not demand a distribution by the deadline for the completion of the said demand for distribution.

G. Accordingly, in the instant auction case, on August 25, 2015, the distribution schedule relating to KRW 21,056,769 (=sale price + KRW 22,200,000 + interest of KRW 6,089 – enforcement cost KRW 1,149,320) was formulated as follows.

【Facts without dispute over grounds for recognition, entries in Gap evidence Nos. 4, 5, and 12, the purport of the whole pleadings

2. Determination as to the cause of action

A. The Plaintiff’s assertion 1) delegated the daily processing of the instant passenger vehicle to C until receiving the provisional attachment and dividend for the instant passenger vehicle, but the Plaintiff demanded a distribution [the Plaintiff expressed it as “the report of right,” but the report of right refers to the Plaintiff’s self-certification of the right to become an interested party in the auction procedure (Article 90 subparag. 4 of the Civil Execution Act), and the Defendant and C’s negligence alleged by the Plaintiff did not report the right not to demand a distribution. Thus, the Plaintiff’s assertion was not caused by the negligence between the Defendant and C, who did not arrange for the claim, thereby incurring losses not receiving the dividend amounting to KRW 8.5 million.

2) Therefore, the Defendant is obligated to pay the Plaintiff the damages totaled of consolation money, KRW 10 million, and the damages for delay.

B. Determination

1) According to Article 270 of the Civil Execution Act for the reason that the plaintiff did not receive dividends in the auction case of this case, the provisions of Articles 264 through 269, 271 and 272 of this Act shall apply mutatis mutandis to the auction procedure to exercise the security right to automobiles, and the provisions of Articles 108, 109, 111 through 129, and 195 (2) through (4) of the Civil Execution Act and Articles 264 through 267 of the Civil Execution Act shall apply mutatis mutandis to the auction for exercising the security right to automobiles, which is the object of automobiles. According to the first sentence of Article 108 of the Civil Execution Act, the provisions of the compulsory auction for automobiles registered pursuant to the Automobile Management Act shall apply mutatis mutandis to the compulsory auction for automobiles unless otherwise provided for in the above Rules.

Therefore, in the instant auction case, the Plaintiff is a creditor who seized a provisional seizure ( February 27, 2015) subsequent to the registration of the decision on commencing the auction at the instant auction, and was entitled to participate in the distribution to make a demand for distribution pursuant to Article 88(1) of the Civil Execution Act. However, due to the failure to make a demand for distribution by April 28, 2015, which is the completion period for the demand for distribution, the Plaintiff was unable to receive a distribution from the proceeds from the sale of the instant passenger car. 2) Whether the Plaintiff failed to perform the demand for distribution that was accepted by C.

The fact that D, representing the Plaintiff, delegated the application for provisional attachment of the instant passenger vehicle to C is as seen earlier, but further, as to whether D, arising from the demand for distribution, delegated all daily treatment until dividends are paid in the instant auction case, it is not sufficient to recognize it, and there is no other evidence to acknowledge it. 3) C or D, representing the Plaintiff, delegated the application for provisional attachment of the instant passenger vehicle to C on February 26, 2015, by the Plaintiff or D, who delegated the application for provisional attachment of the instant passenger vehicle, is entitled to receive dividends in the instant auction case. It is examined whether C or D has a duty to advise or explain that D may receive dividends in the instant auction case.

B) Article 2(1) of the Certified Judicial Scriveners Act provides that the affairs of a certified judicial scrivener shall be ① preparation of documents to be submitted to the court and the public prosecutor’s office, ② preparation of documents related to the affairs of the court and the public prosecutor’s office (Article 2(1)1), ③ preparation of registration or other documents necessary for application for registration (Article 2(2)2), ④ preparation of documents necessary for registration or application for registration, ④ proxy for application for registration, ⑤ consultation on the acquisition of property in a public auction case under the Civil Execution Act and a public auction case under the National Tax Collection Act and other Acts and subordinate statutes (Article 2(1)1, 6 submission of documents prepared under subparagraphs 1 through 3 by proxy (Article 6).

On the other hand, a certified judicial scrivener under Article 21 (1) of the Certified Judicial Scriveners Act shall prohibit any other person from participating in a lawsuit or dispute beyond the scope of his/her affairs, and Article 3 (1) of the same Act prohibits any person who is not a certified judicial scrivener from engaging in the affairs specified as the affairs of the certified judicial scrivener, and if such person violates Article 74 (1) 1 of the same Act, he/she shall be punished by imprisonment for not more than three years or by a fine not exceeding five million won.

(2) Article 2 (1) of the Judicial Documents Act, which was repealed by Act No. 1335, Apr. 25, 1963 (No. 317) provides for the scope of affairs of a certified judicial scrivener with respect to the above scope of affairs of a certified judicial scrivener (No. 133); Article 2 (2) provides for the preparation of documents and other documents to be submitted to the court and the prosecutor's office at his/her request, which are limited by other Acts; Article 3 (2) provides that the scope of affairs of a certified judicial scrivener with respect to the above affairs of a certified judicial scrivener shall not be prepared by other Acts and subordinate statutes; Article 10 (1) provides that the scope of affairs of a certified judicial scrivener with regard to his/her application for registration shall be limited by Act No. 100 (No. 2171); Article 2 (3) provides that the scope of affairs of a certified judicial scrivener with regard to his/her application for registration shall be included in the scope of affairs of a certified judicial scrivener; and Article 18 (2) provides necessary documents to the prosecutor's office.

On the other hand, according to Article 19(3) of the Certified Judicial Scriveners Act, where matters concerning standards for fees of certified judicial scrivener are prescribed, the preparation of documents to be submitted to the court, prosecutor's office, etc. shall be divided into documents requiring a written proposal (such as a written complaint, an application for preservative measure, execution, and non-contentious case), and documents not requiring a written proposal, and the remuneration per document shall be separately determined for each document, and the same remuneration for each document shall also be determined for each document.

In contrast, Article 3 of the Attorney-at-Law Act provides that "the duties of an attorney-at-law shall be to conduct acts related to lawsuits, representation in claims for administrative dispositions, etc. by delegation by the parties or other persons concerned, or by the commission of the State, local governments or other public agencies, and to conduct general legal affairs." Article 109 subparagraph 1 of the same Act provides that "any person, other than an attorney-at-law, shall be punished by imprisonment for not more than seven years or by a fine not exceeding 50 million won, in return for promising him/her to receive or promise to receive money, valuables, entertainment or other benefits or to provide them to a third party."

C) In the Certified Judicial Scriveners Act, the affairs of a certified judicial scrivener are prescribed in the Certified Judicial Scriveners Act, and the Attorney-at-Law Act prohibits any person other than an attorney-at-law from participating in a lawsuit or other dispute beyond the scope of his affairs. However, it is not possible for a certified judicial scrivener to give appropriate explanation or advice to the person concerned within the scope related to the performance of his duties prescribed in the Certified Judicial Scriveners Act, and it does not exempt him from the duty of explanation or advice arising from other Acts, etc. (see Supreme Court Decision 2000Da61671, Jan. 10, 200). In addition, a certified judicial scrivener has professional knowledge about registration affairs.

In light of the expectation and trust of a certified judicial scrivener, who is an expert, the general public delegated the affairs of registration to a certified judicial scrivener, where the contents of the principal duties of a certified judicial scrivener related to the affairs of registration are not compatible with the purport of delegation or rather unfavorable to clients, even though the contents of the principal duties of a certified judicial scrivener related to the affairs of registration are made and represented by an applicant, it is difficult to inform the clients of such contents within the scope related to the handling of the duties prescribed by the Certified Judicial Scriveners Act, to confirm the client’s genuine intent, and to provide explanation or advice so that the client may properly obtain registration by appropriate means (see Supreme Court Decision 2004Da5162, Sept. 28, 2006). In addition, in light of the legal principles as to the duty of a certified judicial scrivener to advise and explain, it is difficult to view that the client’s duty of care is not appropriate to give advice or advice to the relevant person within the scope of his/her duties prescribed by the Certified Judicial scrivener Act, and that it does not go against the client’s duty of explanation or explanation.

E) On February 26, 2015, the defendant's office work performed by D on February 26, 2015, the defendant's office work was conducted as proxy by preparing and submitting an application for provisional seizure of the automobile of this case in order to preserve the plaintiff's loan claim amounting to KRW 20 million against D. Thus, it cannot be deemed that the defendant has a duty of care to explain that C or the defendant may receive distribution to D or the plaintiff in the auction case of this case.

On August 10, 2015, the Plaintiff asserts that “H” located in Chuncheon-si, G (“H”) was unaware of whether to demand a distribution, and that C would be liable for the dividends that failed to demand a distribution, and that C would be liable for damages. As such, the Defendant is also liable to compensate the Plaintiff for damages.

On August 10, 2015, as to whether C had agreed to pay D the amount that the Plaintiff had not received in the auction case of this case as damages, the statement of No. 6 alone is insufficient to recognize it, and there is no other evidence to acknowledge it. Even if C has made the above agreement with D, it is not the Defendant that C bears the obligation to pay damages due to the agreement, even if it is true that C has made the above agreement with D, the obligation to pay damages pursuant to the agreement is not the Defendant.

Therefore, the plaintiff's above assertion is without merit.

3. Conclusion

Thus, the plaintiff's claim is dismissed as it is without merit.

Judges' Branch Office Counter

* The ruling of small-sum case may choose not to state the reasons in accordance with Article 11-2(3) of the Trial of Small Claims Act.