In a case where a creditor commissions an obligee and an obligor to prepare a notarial deed of a monetary loan contract for security by means of a certificate of personal seal impression and a certificate of personal seal issued by the obligor, whether the obligee bears the burden of proof as to the existence of power

Article 130 of the Civil Act, Article 288 of the Civil Procedure Act

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Gyeong, Attorneys Park Jae-soo et al., Counsel for plaintiff-appellant)

Plaintiff (Attorney Kim Jong-soo et al., Counsel for the plaintiff-appellant)

Defendant (Law Firm Lee & Lee, Attorneys Park Jae-soo et al., Counsel for the defendant-appellant)

Suwon District Court Decision 2007Na6629 Decided April 24, 2008

The judgment of the court below is reversed, and the case is remanded to the District Court Panel Division.

1. According to the reasoning of the judgment below and the records, the plaintiff delivered a seal imprint and a certificate of seal impression to the defendant while entrusting the sale of goods, etc. listed in the attached list as stated in the judgment below, and the defendant entrusted the preparation of the notarial deed of this case to the creditor (the defendant) and the debtor (the plaintiff) as the representative of the plaintiff, so the notarial deed of this case is null and void since it was made by the defendant's commission that does not have the authority to act for the plaintiff. The defendant, as the defendant entrusted the defendant with the authority to deliver a seal imprint and a certificate of seal impression to the defendant to compensate for the damage suffered by the defendant due to the failure to repay the loan, etc., so the notarial deed of this case is deemed valid. The court below rejected the plaintiff's claim of this case on the ground that the notarial deed of this case is insufficient to recognize that the notarial deed of this case was made by the defendant's commission without any legitimate authority to act for the plaintiff, and there is no other evidence to recognize it

2. However, it is difficult to accept the above judgment of the court below for the following reasons.

The seal imprint design and the seal imprint certificate are nothing more than one data that can recognize the power of representation, and therefore, they do not necessarily mean that the defendant concludes a monetary loan contract for transfer security on behalf of the plaintiff or entrusts the preparation of a notarial deed on the above contract, and the burden of proving that the right of representation has an effect on the defendant (see Supreme Court Decision 93Da42047 delivered on February 22, 1994, etc.).

Nevertheless, the court below decided as the plaintiff the burden of proof as to the absence of such power of representation. The court below erred in the misapprehension of the burden of proof, and it has affected the judgment.

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jeon Soo-ahn (Presiding Justice)