2016 Gohap34533 (Objection to Claim)

2017Du33537 (Counterclaim loans)

○ ○

Yongsan-gu Seoul Metropolitan Government

Seoul Seocho-gu

Law Firm Han-Gyeong, Counsel for defendant-appellant

[Defendant-Appellant]

○ ○

Goyang-si ○○

Law Firm Democratic LLC, Counsel for defendant-appellant

Attorney Han-hwan

July 6, 2017

August 17, 2017

1. A notary public against the Plaintiff (Counterclaim Defendant) of the Defendant (Counterclaim Defendant) is not allowed to enforce compulsory execution based on the promissory note No. 428, 2010 No. 428.

2. The defendant (Counterclaim plaintiff)'s counterclaim is dismissed.

3. In the case of application for the suspension of compulsory execution by the Seoul Western District Court 2016Kadan169, this Court decided July 2016

18.Decisions on the suspension of compulsory execution to be made shall be authorized.

4. The costs of lawsuit shall be borne by the Defendant (Counterclaim Plaintiff) in total, with the principal lawsuit and counterclaim.

5. Paragraph 3 can be provisionally executed.

Main Office: It is consistent with paragraph (1) of this Article.

Counterclaim: Plaintiff (Counterclaim Defendant; hereinafter “Plaintiff”) is the Defendant (Counterclaim Plaintiff; hereinafter “Defendant”)

300,000,000 won and the period from February 24, 201 to the service of a copy of the counterclaim of this case

5%, 15% per annum from the following day to the date of full payment shall be paid.

1. Facts of recognition;

A. On August 5, 2004, the Plaintiff’s mother, both of which borrowed KRW 150 million from the Defendant with interest of KRW 2.7 million (payment on every 5th day) and due date on February 28, 2005. The Plaintiff and both of ○○○, a notary public, who is the Defendant’s obligee, drafted a notarial deed of monetary loan for consumption on the same day, No. 994, 2004.

B. On December 24, 2010, the two○○ issued a promissory note (hereinafter “instant promissory note”) dated February 24, 201 with the Plaintiff and Yang○○ as the issuer, with the amount of KRW 300 million for the Defendant as the addressee, and on February 24, 2011, with respect to the instant promissory note (hereinafter “instant promissory note”), a notary public drafted a notarial deed No. 428 of the ○○ Deed (hereinafter “instant notarial deed”).

[Ground of recognition] Facts without dispute, Gap evidence 1 through 3, 13, 14, Eul evidence 1 and 2, the purport of the whole pleadings

2. The parties' assertion

A. The notarial deed of this case is prepared by both ○○○ without obtaining the power of representation from the Plaintiff, and thus, it is not effective as an executive title against the Plaintiff. Moreover, since the period of extinctive prescription under the Promissory Notes Act has already expired, compulsory execution based on the notarial deed of this case shall be rejected.

B. Defendant Yangyang ○ issued the instant promissory note with the power of representation granted by the Plaintiff. The instant notarial deed is valid against the Plaintiff, and the Plaintiff is liable to pay KRW 300 million to the Defendant as a promissory note issuer. In addition, the Plaintiff issued the instant promissory note with the knowledge that the Defendant’s obligation of borrowing KRW 150 million as of August 5, 2004 includes the obligation of borrowing KRW 150 million as of August 5, 2004. As such, Defendant Yangyang ○ issued the instant promissory note with the knowledge that the said obligation of borrowing KRW 300 million as of August 5, 200, or upon the issuance of the instant promissory note, it is liable to pay KRW 30 million to the Defendant.

3. Determination as to the principal lawsuit and the counterclaim

A. Relevant legal principles

Since the indication of an execution recognition and recognition that a notarial deed may have an executory power as an executory power is the litigation against a notary public, if a notarial deed is prepared by a commission of an unauthorized representative, it has no effect as an executory power, and the burden of proving that there is an authority to prepare such notarial deed is an executory power. The authenticity of the portion directly prepared by a notary public of a notarial deed is presumed, but it is presumed that it is only the agent has entrusted the preparation of the notarial deed and it does not necessarily be naturally acknowledged that there is a legitimate proxy power (see Supreme Court Decision 2002Da18114, Jun. 28, 2002). In addition, in case where a third party commissions the preparation of a notarial deed as an agent of a debtor, the circumstance that the third party commissions the preparation of the notarial deed with a debtor's seal impression, personal seal impression, and identification certificate is only one material that can recognize the proxy power, and therefore, it does not necessarily mean that the third party entrusts the preparation of the notarial deed on behalf of the debtor (see Supreme Court Decision 20104Da4.4.4.

B. Determination

In relation to whether ○○○ has been granted the power of attorney to commission the preparation of the instant notarial deed from the Plaintiff, the fact that ○○○ was the Plaintiff’s mother is the Plaintiff’s mother is as seen earlier, and according to the entries in Gap evidence Nos. 3, 13, and 14, both ○○ at the time of the preparation of the instant notarial deed can be recognized that ○○ had the Plaintiff’s power of attorney, seal impression, and personal seal impression (issuance by proxy). However, it is insufficient to recognize that both ○○ was authorized to commission the preparation of the instant notarial deed on behalf of the Plaintiff, and there is no other evidence to prove otherwise.

As to this, even if the defendant does not have the right to represent the plaintiff on August 5, 2004, the notarial deed of this case is on the extension line of the notarial deed for cash loan contract prepared by the plaintiff on August 5, 2004, and the plaintiff was well aware of what act was done while holding the notarial deed of this case and the notarial deed of this case. Thus, in relation to the preparation of the notarial deed of this case, the notarial deed of this case is established as an expression agent under Article 126 of the Civil Act. However, since the declaration of intention of recognition of compulsory execution stated in the notarial deed is an act of litigation and such act of litigation is not applicable as an expression agent, the notarial deed prepared by the commission of an unauthorized representative as well as the creditor of the notarial deed of this case should be denied as an executive title regardless of whether it is believed to have the right to represent or if there is any justifiable reason to believe (see Supreme Court Decision 82Da1758, Jun. 26, 1984).

On the other hand, the defendant asserts that the plaintiff issued the Promissory Notes in this case and approved the debt of borrowed on August 5, 2004 or borne a civil guarantee obligation. However, as acknowledged earlier, the plaintiff cannot be deemed to have granted the right to issue the Promissory Notes in this case to both ○○○. Thus, the defendant's assertion on this part is without merit.

In addition, even if there was a power of attorney to act for the Plaintiff on behalf of the Plaintiff on February 24, 201, the fact that the payment date of the Promissory Notes was as of February 24, 2011 is recognized earlier. As such, it is apparent in the record that the instant lawsuit was filed on July 6, 2016, when three years have elapsed since the period of extinctive prescription of the rights under the Promissory Notes was expired. Therefore, the instant claim for the Promissory Notes has already expired and its prescription period

Therefore, compulsory execution by the notarial deed of this case cannot be permitted. Thus, the plaintiff's above assertion is with merit, and the defendant's assertion seeking payment of KRW 300 million on the premise that the plaintiff issued the Promissory Notes of this case is without merit.

4. Conclusion

Therefore, the plaintiff's claim of this case is justified, and the defendant's claim of this case is dismissed as it is without merit. It is so decided as per Disposition.

Judge New Constitutional Court of Justice

Judges Young-ju

Judges Lee Jae-in