Daewoo Securities Co., Ltd. (Attorney Kim Young-sik, Counsel for the plaintiff-appellant)

Korea

October 28, 2003

Seoul District Court Decision 2001Gahap24179 Delivered on May 13, 2003

1. The plaintiff's appeal is dismissed.

2. The costs of appeal shall be borne by the plaintiff.

The judgment of the first instance shall be revoked, and the defendant shall pay to the plaintiff 1,670,978,262 won with 5% interest per annum from February 12, 1999 to the delivery date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

The following facts are not disputed between the parties, or are recognized by Gap evidence 6-1 to 3, Gap evidence 8-10, 12, Eul evidence 1 to 3, and the result of the evidence investigation conducted by the court of first instance by integrating the whole purport of the pleadings.

A. On February 23, 1996, the Plaintiff entered into a lease agreement with Nonparty 1 on the new-dong, Dongjak-gu, Seoul Special Metropolitan City (number 1 omitted), and on the 103th floor of the building (title 2 omitted), both the land surface (title 2 omitted) in Dobong-dong, Seoul Special Metropolitan City (hereinafter referred to as “instant real estate”; when referring only the 103th floor among them, hereinafter referred to as “instant building”) with the lease deposit amount of KRW 1.9 billion; the lease agreement was concluded for two years from May 21, 1996; the lease agreement was concluded on three occasions from May 22, 1996 to KRW 1.9 billion; on July 24, 1997, the Plaintiff applied for the establishment registration of the mortgage in the name of the Seoul Special Metropolitan City with the maximum debt amount of KRW 2470 million; and on 300 million from May 24, 1997.

B. On July 26, 1996, the Securities Co., Ltd. (hereinafter referred to as the “Alternative Securities Co., Ltd.”) concluded a mortgage agreement with Nonparty 1 regarding the instant real estate with the maximum debt amount of 35 billion won and the maximum debt amount of 25 billion won as to the instant real estate, respectively, and filed an application for the registration of the establishment of a neighboring mortgage with respect to the instant building on July 29, 1997, the said registry office received KRW 29309 and 29310 on the same day, and the said registry office received KRW 35 billion and KRW 1 and 25 billion on the title of the securities instead of the maximum debt amount of KRW 25 billion. The said application for the registration of the establishment of a new mortgage was not accompanied by the registration

C. After that, in addition to the registration of creation of a new collateral, the registration of establishment of a new collateral in the name of the securities instead of ten billion won was completed on November 13, 1996 with the maximum debt amount of KRW 6 billion, KRW 5 billion, and KRW 4, 5, and 6 in the name of the securities registered, respectively, as well as on November 13, 1996.

D. Around February 19, 198, alternative securities applied for a voluntary auction of the instant real estate with the above collateral security (Seoul District Court 98Ma7477). Accordingly, on December 22, 1998, the instant real estate was awarded at KRW 38.91 billion to a life insurance company instead of the aforesaid collateral security (However, the first floor of the instant real estate was excluded from the revocation of the decision of an auction court). The auction court distributed KRW 1,670,978,262 out of the successful bid price of the instant building on behalf of the securities on February 11, 1999, which is the date of distribution.

2. Plaintiff’s assertion and judgment

A. The plaintiff asserts that, as the cause of the claim in this case, the registration public official (the "registration public official" as amended by Act No. 5592 of Dec. 28, 1998 was changed to the "registration officer", the registration public official (hereinafter referred to as the "registration official") will be appointed to the registration officer in accordance with the use of the current law, etc.), the former Registration of Real Estate Act (amended by Act No. 5205 of Dec. 30, 1996; hereinafter referred to as the "Act") was not accompanied by the registration completion certificate concerning the right of the registration obligor at the time of filing an application for registration or other documents equivalent thereto, the non-party 2, such as the Seoul District Court, Dongjak Registry, etc., did not attach the registration completion certificate or other documents equivalent thereto and did not accept the above registration completion registration of the securities, thereby causing damage to the plaintiff's property due to the plaintiff's failure to accept the application for the registration and caused damage to the plaintiff's auction procedure.

B. Determination

(1) In full view of the purport of the entire pleadings in the evidence No. 8-2, No. 10, 12, 13, and No. 1 through 3 of the evidence No. 8-2, and the result of the examination of the evidence No. 1 of the court of first instance, an application for registration of the establishment of the establishment of the establishment of a new security instead of securities was received at around 16,00 on July 29, 1996 by No. 29309, 29310. The Plaintiff’s application for registration of the establishment of a new security was received at around 10:00 on the receipt number No. 293, No. 29393, Oct. 10, 199; Nonparty 2 of the registrar found that the application for registration of the establishment of a new security was not accompanied by the certificate No. 1 of the establishment of the establishment of a new security on behalf of the Plaintiff and the applicant for registration was not accompanied by the certificate No. 5 of the establishment of a new security.

Therefore, even if the above registrar did not attach a certificate of registration for the right of the person liable for registration to the application for registration of alternative securities, if the certificate of registration attached to the Plaintiff’s application for registration is replaced by the certificate of registration, and the registration of establishment of establishment of a senior security in the name of alternative securities is completed, it is against the duty of formal examination as the one registrar.

(2) However, when a registrar receives an application for registration of establishment of a mortgage, he/she shall, in principle, complete the registration of establishment of a mortgage in the order of receipt number pursuant to Article 54 of the Act. If an application for registration of establishment of a mortgage is defective, he/she shall not immediately dismiss the application only for the reason that it constitutes the reason under Article 55 subparagraph 8 of the Act. Meanwhile, Article 40 of the Act provides that the registration certificate of the right of the person liable for registration or other document equivalent thereto shall be attached to the application for registration at the time of application for registration shall be verified that the person liable for registration is the owner on the real registry and shall not have the purpose of protecting the norm in order to prevent any fraudulent and invalid registration which may not be easily stated in the intention of the person liable for registration. It is not the purport of the above provision to exclude the applicant for registration who did not attach a certificate of registration, which is necessary document to be corrected, and give his/her priority to the junior applicant for registration, which is not for the protection of the person liable for registration, and even if the applicant was dismissed, it is not for the expiration of the registration certificate.

Ultimately, the plaintiff's assertion that he/she suffered loss due to negligence in violation of the law in the performance of his/her duties is without merit without any need to further examine.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and the judgment of the court of first instance is just in conclusion, and the plaintiff's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Kim Tae-dae (Presiding Justice)