[1] Details of the duty of care borne by the guarantor under the former Act on Special Measures for the Transfer of Ownership

[2] In a case where Gap received a guarantee from three guarantors under the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate and completed the registration of ownership transfer in his/her name with respect to the above land after acquiring a certificate that "A shall actually own the land after inheritance of the land provided by Section A," and where Eul was a person who is not related to the above land, and the guarantor was not aware of Eul before the letter of guarantee was prepared, the case holding that Eul was negligent in violating the duty of care to be observed by the guarantor when preparing the letter of guarantee

[3] In a case where a guarantor has prepared and registered a false warranty against intent or negligence under the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate, whether the guarantor is liable to compensate for the damages suffered by a person who traded with the belief that the registration is true

[4] Details of the duty of care borne by a public official of the competent authority issuing a written confirmation in accordance with the Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate, and requirements for recognizing the negligence

[5] The case holding that the court below erred in the misapprehension of legal principles in a case where Gap public official in charge of the ledger in receipt of an application for the issuance of a confirmation under the former Act on Special Measures for the Registration, etc. of Transfer of Real Estate Ownership omitted hearing opinions of neighboring residents since there was no approval in the field investigation and issued a confirmation under the letter of guarantee made with false contents

[1] In addition to Article 10(2) of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (amended by Act No. 8080 of Dec. 26, 2006; hereinafter “former Act”), Articles 7(1) and 9(3) of the former Enforcement Decree of the Act on Special Measures for the Registration, etc. of Ownership of Real Estate (amended by Presidential Decree No. 20120 of Jun. 28, 2007); and Article 9(3) of the former Enforcement Decree of the Act on Special Measures for the Registration, etc. of Ownership of Real Estate (amended by Presidential Decree No. 20120 of Jun. 28, 2007); or Article 10(3) of the former Act was enacted to allow the former Act to register real estate that is not registered at the time of the enforcement of the Act at the time of entry into force, or that the entry of the registry is easy in the real relation

[2] In a case where Gap issued a guarantee certificate to three guarantors under the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate (amended by Act No. 8080 of Dec. 26, 2006) that "A shall be jointly and severally guaranteed that the land was owned by inheritance of the land in accordance with the section A," and upon obtaining a confirmation from the competent authority in charge of the registry, the ownership transfer registration was made in its own name. In fact, Eul's name is the same as the owner in the land cadastre, and there was no relation to the above land and Eul was completely different from the owner in the above land before the letter of guarantee was prepared, the case holding that the guarantor prepared a guarantee certificate only when it was judged that the applicant's application was consistent with the fact on the basis of the fact that he was aware of the owner's relationship with the applicant and the owner's personal relations, etc., and that the guarantor's name and the owner's duty of care was not known before the application for the issuance was made.

[3] If a guarantor, as stipulated in the former Act on Special Measures for the Registration, etc. of Transfer of Ownership of Real Estate (amended by Act No. 8080 of Dec. 26, 2006), prepares a false warranty against intent or negligence, and the issuance of a written confirmation and registration have been completed based on such false warranty, the guarantor is liable to compensate for damages suffered by the person who has transacted with the belief that the registration is true.

[4] Articles 10(3), 10(4), and 11(5), and 11(2) of the former Act on Special Measures for the Registration, etc. of Ownership of Real Estate (amended by Act No. 8080, Dec. 26, 2006; hereinafter “former Act”) provide that the competent authority, upon receipt of an application for the issuance of a certificate, shall warn the guarantor of the punishment for false guarantee, and shall verify the purport of the guarantee. In addition, if an objection is raised within the period of public announcement, it shall be issued through fact-finding through investigation, and if such objection is raised within the period of public announcement, the competent authority has the duty of due care to verify the actual relationship of rights through the above series of procedures, but the competent authority may limit the public official’s duty of care to obtain a new document confirmation document issued by the applicant, and shall not be obliged to obtain a new document confirmation document issued by the public official for more than a certain period of time, and shall not be obliged to obtain a new one’s own confirmation document issued by the applicant.

[5] The case holding that the court below erred by misapprehending the legal principle as to Gap's average duty of care and duty of care, in light of various circumstances such as the fact that Gap's public official in charge of the registry in receipt of an application for the issuance of confirmation pursuant to the former Act on Special Measures for the Registration, etc. of Ownership Transfer of Real Estate (amended by Presidential Decree No. 20120 of Jun. 28, 2007) failed to hear opinions due to the absence of nearby residents at the time of a field investigation and omitted hearing of opinions of nearby residents, and the court below erred by misapprehending the legal principles as to Gap's average duty of care and duty of care, although Gap's duty of care and duty of care cannot be seen as being different from Gap's duty of care and duty of care, in light of various circumstances such as the fact that Gap's public official failed to obtain approval of neighboring residents and omitted hearing of opinions and issued a report on the field investigation and issued it.

[1] Article 750 of the Civil Act; Article 1 and Article 10(2) of the former Enforcement Decree of the Act on Special Measures for the Registration, etc. of Ownership; Article 7(1) and Article 9(3) of the former Enforcement Decree of the Act on Special Measures for the Registration, etc. of Ownership Ownership / [2] Article 750 of the Civil Act; Article 1 and Article 10(2) of the former Enforcement Decree of the Act on Special Measures for the Registration, etc. of Ownership / [3] Article 20 of the former Enforcement Decree of the Act on Special Measures for the Registration, etc. of Ownership / [3] Article 70 of the Act on Special Measures for the Registration, etc. of Ownership / [4] Article 20 of the former Enforcement Decree of the Act on Special Measures for the Registration, etc. of Ownership / [2] Article 80 of the former Enforcement Decree of the Act on Special Measures for the Registration of Ownership / [4] Article 20 of the former Enforcement Decree of the Act on Special Measures for the Registration of Ownership 20.

Jeju Livestock Industry Cooperatives (Attorney Go Jong-hee, Counsel for the defendant-appellant)

Defendant 1 and 3 others (Attorney Lee Young-chul, Counsel for the defendant-appellant)

Jeju District Court Decision 2010Na347 decided March 30, 2011

The part of the lower judgment regarding Defendant Special Self-Governing Province is reversed, and that part of the case is remanded to the Panel Division of Jeju District Court. All appeals by Defendants 1, 2, and 3 are dismissed. The costs of appeal by Defendants 1, 2, and 3 are assessed against the Defendants.

The grounds of appeal are examined.

1. As to the grounds of appeal by Defendant 1, 2, and 3

A. As to the grounds of appeal Nos. 2 and 3

Article 10(2) of the former Act on Special Measures for the Registration, etc. of Ownership Transfer (amended by Act No. 8080, Dec. 26, 2006; hereinafter “former Act”) provides that a person who intends to obtain a confirmation under the former Act shall file an application for a confirmation with the competent authority of the registry along with a guarantee of at least three persons commissioned by the head of Si/Gu/Eup/Myeon as a guarantor. Article 7(1) of the former Enforcement Decree of the Act on Special Measures for the Registration, etc. of Ownership Transfer (amended by Presidential Decree No. 20120, Jun. 28, 2007; hereinafter “former Enforcement Decree”) provides that a guarantor shall independently perform his/her duties fairly, faithfully, and promptly. Article 9(3) of the former Enforcement Decree provides that a guarantor shall submit a guarantee certificate if he/she judges that the application for the issuance of a certificate is consistent with the facts, and that the certificate is not in conformity with the provisions of the former Act’s duty of due diligence and duty of due diligence.

According to the reasoning of the judgment below, the court below found that the non-party 1 was the land owned by the non-party 1 (the non-party 1 omitted, address: the non-party 2 omitted, and the non-party 3 was the owner of the non-party 4's land without knowing that the non-party 3 was the guarantor of the non-party 1, 2, and 3 (hereinafter referred to as the "the defendant's guarantor"), and that the non-party 1 was the owner of the non-party 4's land and the non-party 5,17 square meters of forest land (hereinafter referred to as the "the land of this case"). The non-party 1 knew that the non-party 3 was the owner of the non-party 1's land and the non-party 3 was the owner of the non-party 4's real estate without knowing that the non-party 3 was the owner of the non-party 1's duty of due care before September 9, 1981, and completed the registration of the non-party 26's warranty.

Examining the facts duly confirmed by the court below in light of the aforementioned legal principles, the defendant's guarantor should have prepared the guarantee certificate of this case only on the ground that not only the documents presented by the applicant for the issuance, but also the fact that they are aware of the regional relationship and human relations, etc., and that they were refused to prepare the guarantee certificate if they were not verified the actual legal relationship. However, prior to the issuance of the guarantee certificate, the defendant's guarantor was negligent in violating the duty of care to comply with in preparing the guarantee certificate, on the ground that the non-party 1 and the non-party 3, the owner of the land cadastre and the non-party 3, the applicant for the issuance of the guarantee, are the same as the non-party 1 of the land cadastre. Thus, it is clear that the defendant's guarantor is the defendant's guarantor, who violated the duty of care to comply with in preparing the guarantee certificate as prescribed by the former Act.

Although the reasoning of the judgment below does not contain any inappropriate or inadequate part, the court below's conclusion that the defendant's guarantor was negligent in preparing the guarantee certificate of this case is justifiable, and there is no error of law by misunderstanding the legal principles as to the guarantor's duty of care and negligence, as otherwise alleged in the ground of appeal.

B. Ground of appeal No. 1

If the guarantor under the old law prepares a false guarantee by intention or negligence, and the issuance of a written confirmation and registration have been made based on such false guarantee document, the guarantor shall be liable to compensate for the damages suffered by the person who transacted with the belief that the registration is true.

According to the reasoning of the judgment below and the records, the defendant's guarantor and the defendant's guarantor are liable to compensate the plaintiff for damages incurred by the plaintiff by believing that the above registration is true and by completing the establishment registration of a neighboring mortgage on the land of this case, since the defendant's guarantor and the defendant's guarantor have a duty to compensate for the damages incurred by the plaintiff, based on the belief that the above registration is true and completed.

Although the reasoning of the judgment of the court below is not appropriate, the court below that the defendant is liable to compensate for damages to the guarantor is just, and it cannot be said that there is an error of law by misunderstanding the legal principles that affected the judgment, as otherwise alleged in the

2. As to the grounds of appeal by Defendant Jeju Special Self-Governing Province

Article 10(3), (4), (5), and Article 11(2) of the former Act provide that the competent authority in receipt of an application for issuance of a written confirmation shall warn the guarantor of the punishment for false guarantee, and then confirm the purport of guarantee. In addition, the pertinent real estate shall be subject to the field investigation and the truth of guarantee shall be verified through a fact-finding investigation if an objection is raised within the period of public announcement. In addition to the legislative purport of the former Act, the competent authority shall be deemed to have the duty of care to verify the actual relationship of rights through the aforementioned series of procedures, but Articles 10(7) and 13 of the former Act and Article 5 of the former Enforcement Decree of the same Act provide that if the applicant has been living in the real estate location and Ri for more than 10 years, the competent authority in receipt of an application for the issuance of a written confirmation shall not only strictly limit the applicant's right and duty to verify the actual relationship of rights and obligations, but also shall also require the public official to obtain criminal punishment for the entire structure of the written confirmation and the overall purport of the written confirmation.

According to the reasoning of the judgment below, the court below revealed that the non-party 3 succeeded to and owned the land of this case from September 9, 1981. The non-party 4, the deceased non-party 4, the deceased non-party 4, and the deceased non-party 4, the father of the deceased non-party 4, was deceased on May 25, 1951. The deceased non-party 4, the deceased non-party 3, the deceased non-party 4, the deceased non-party 5, the deceased non-party 4, the deceased non-party 4, the deceased non-party 3, the deceased's father of the deceased. The deceased non-party 4's domicile of the deceased non-party 4, the deceased non-party 3, the deceased non-party 3's lot number at Jeju-si, and the non-party 6, the deceased non-party 4's address of the deceased non-party 1, the original owner of the land of this case, was non-party 2, the non-party 7.

However, such determination by the court below is difficult to accept in light of the aforementioned legal principles and the following circumstances.

First, Article 12 subparagraph 3 of the former Enforcement Decree provides that the competent authority shall hear the opinion of who is the actual owner of the relevant real estate from one or more residents nearby the location of the real estate, and the proviso provides that when it is impossible to hear the opinion of the residents due to the absence of residents nearby the time of the on-site investigation, the competent authority may omit the opinion after stating the purport thereof.

However, according to the reasoning of the judgment below and the records, the land of this case is located in the middle mountain area around the middle mountain area of the Seopo-si, Seopo-si, Seopo-si, which is located in the middle mountain area, and there was no authorization in the vicinity thereof, and the non-party 7, who is a public official of the competent authority, conducted an on-site investigation on the land of this case on April 24, 2006, but did not meet the neighboring residents, and thus omitted the hearing of neighboring residents' opinions and entered the purport in the on-site investigation report. Thus, the non-party 7, who is a public official of the competent authority, violated any duty of care in conducting the on-site

On the other hand, the court below held that the deceased non-party 4 and the deceased non-party 5's permanent domicile or the deceased non-party 3's death occurred far away from the land of this case due to the inheritance date stated in the letter of guarantee of this case and a certified copy of the family register of this case, which are the deceased non-party 4 and the deceased non-party 5's deceased non-party 4, the deceased non-party 3's deceased permanent domicile or the deceased non-party 3's death were the negligence of non-party 7. However, in the former law, the false statement of guarantee means that the substantial contents are not consistent with the truth, so it cannot be viewed as a reasonable reason to suspect the authenticity of the letter of guarantee merely because the inheritance date stated merely in the letter of guarantee that the inheritance date stated the deceased non-party 3's death date as the same day as the deceased non-party 5's death date). In addition, according to the records, it is difficult to view that the court below's ordinary legal relationship was different from the above fact.

Nevertheless, the court below judged that the non-party 7, who is a public official of the office of registry, was negligent in violating the duty of care in issuing a written confirmation. Thus, the court below erred by misapprehending the legal principles on the duty of care and negligence of the public official of the office of registry and thereby affecting the conclusion of the judgment. The ground of appeal by

3. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal by Defendant Jeju Special Self-Governing Province, the part of the judgment below against the above Defendant is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. Defendant’s appeal is dismissed, and the costs of appeal by Defendant guarantor are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Poe-dae (Presiding Justice)