2013Na265 Objection

A person shall be appointed.

Law Firm LLC (LLC) 00

[Defendant-Appellant]

A person shall be appointed.

Law Firm LLC (LLC) 00

[Defendant-Appellant]

Seoul Central District Court Decision 2012Gahap31883 Decided October 26, 2012

June 20, 2013

July 25, 2013

1. Revocation of a judgment of the first instance;

2. The plaintiff's claim is dismissed.

3. All costs of the lawsuit shall be borne by the Plaintiff.

1. Purport of claim

No. 2 of the 2011 Deed No. 2 prepared by the Defendant’s notary public against the Plaintiff, ○○, a law firm, on January 4, 2011

No compulsory execution based on a notarial deed of a promissory note shall be allowed.

2. Purport of appeal

The order is as set forth in the text.

1. Basic facts

The court's explanation on this part is identical to the reasoning of Paragraph 1 of the judgment of the court of first instance, and therefore, this part is cited in accordance with the main text of Article 420 of the Civil Procedure Act.

2. Determination as to the cause of action

A. The parties' assertion (1) The plaintiff's assertion

Although there is no fact that the Plaintiff delegated the authority to request the preparation of the notarial deed of this case to C, C forged a power of attorney in the Plaintiff’s name as the owner of the Plaintiff’s seal imprint, thereby entrusting C to prepare the notarial deed of this case. Even if the Plaintiff delegated the said authority to C, there is no lack of delegation to C of the authority to re-endorse the authority to request the preparation of the notarial deed of this case. Thus, the notarial deed of this case is null and void as it was entrusted by the unauthorized agent to prepare the notarial deed of this case and compulsory execution based on the invalid notarial deed

On June 8, 2010, when the Plaintiff borrowed KRW 3.5 billion from the Defendant, the Plaintiff delegated the Plaintiff’s employee C with the authority to entrust the preparation of the instant notarial deed. The Defendant again received necessary documents from the said C along with the delegation of authority on the commission of the preparation of the instant notarial deed, and again entrusted the preparation of the instant notarial deed on January 4, 201. Thus, the instant notarial deed is valid as it was made by the commission of a lawful agent, and is also lawful enforcement based on the instant notarial deed.

B. Determination

Since the indication of recognition of execution that a notarial deed allows a notary public to have an executory power as an executory power is an act of litigation against a notary public, in case where a notarial deed is prepared by a commission of an unauthorized representative, it has no effect as an executory power, and the burden of proof as to the existence of an executory power to prepare such notarial deed is a creditor who asserts its effect (see Supreme Court Decision 2002Da18114, Jun. 28, 2002, etc.

In this case, comprehensively taking account of the purport of the statement No. 1, No. 12-4, No. 12-2, No. 2-2, No. 7-1, No. 7-2, No. 1, B-2, and No. 1, No. 8, and No. 11, the Plaintiff: ① the Plaintiff, along with D on June 8, 2010, borrowed 3.5 billion won from the Defendant on July 7, 2010; ② the Plaintiff agreed with the Defendant on the terms and conditions of lending and No. 100 billion won before borrowing the above 3.5 billion won, and the Plaintiff issued a copy of the Promissory Notes to the Defendant’s employees under the name of 1, No. 2, and No. 1, No. 3000, No. 1, 2000, and No. 2, and the purport of the entire pleadings.

The facts that entrusted the preparation of the notarial deed in this case. 9 The defendant applied for a compulsory auction on D’s real estate under Seoul Eastern District Court No. 201ta District Court No. 2011, and the distribution schedule was prepared on July 13, 2012 in the auction procedure. The plaintiff stated an objection on the above distribution date, and then filed a lawsuit of demurrer against the defendant, etc. under Seoul East Eastern District Court No. 2012Gahap10643, which delegated the right to request the preparation of the notarial deed in this case to the defendant and did not delegate the right to request the preparation of the notarial deed in this case to the defendant, respectively.

According to the above facts, while borrowing KRW 3.5 billion from D with the defendant, the plaintiff issued the Promissory Notes in this case with the plaintiff and D as its agent and delivered them to E as proxy through its agent. With the intent to execute and recognize the obligations of the Promissory Notes in this case, the plaintiff delivered delegations, certificates of personal seal impression, and resident registration certificates under the plaintiff's name to Eul for the commission of the preparation of the Notarial Deed in this case. The plaintiff's agent delivered the delegations, certificates of personal seal impression, and resident registration certificates under the plaintiff's name again received as above to E as proxy. Thus, the plaintiff's agent granted all the delegations, certificates, and resident registration certificates under the plaintiff's name to Eul with the intent to assume responsibility for the obligations in this case. Within the scope of the power of representation, it shall be deemed that the delegations under the plaintiff's name, certificates of personal seal impression, and resident registration certificates are included in the delegations granted to the defendant as the third party (see Supreme Court Decision 2012Da31895, Jul. 12, 2012).

Ultimately, the notarial deed of this case is prepared by the commission of a legitimate representative, and is valid, and compulsory execution based on the notarial deed of this case is also lawful. Thus, the plaintiff's assertion on the plaintiff's claim of this case seeking the denial of compulsory execution is without merit.

3. Conclusion

Therefore, the plaintiff's claim of this case is dismissed as it is without merit, and since the judgment of the court of first instance is unfair with different conclusions, the defendant's appeal is accepted and the judgment of the court of first instance is revoked and the plaintiff's claim is dismissed as per Disposition.

Judges Cho Jae-ho

Judges Ni-nam