[1] The requirements to apply the provision of expression by proxy under the Civil Act to the Article of the bill act by analogy

[2] The case holding that there is no justifiable ground to believe that the creditor has the authority to perform the above act of a bill, in case where the debtor has issued a promissory note in the name of his/her surety to the creditor with the intent of the joint and several liability for the total amount of the debt without his/her consent after being delegated only the power of representation on the

[1] If the act of a bill was performed by a person without authority by the so-called form of an institution or signature and seal affixed to the person himself/herself under the name of the person with no authority to do the act of a bill, the act of a bill constitutes not by proxy but by the person with authority to do the act of a bill. However, even in such a case, there is a ground to believe that the third party has the authority to do the act of a bill to do so to the person who actually performed the act of a bill, and if there is a ground to assume the principal responsible for the act of a bill, as in the case of the act of a bill by proxy, the provision

[2] The case holding that there is no justifiable ground to believe that the creditor has the authority to perform the above act of a bill in the name of the debtor, in case where the debtor has issued a promissory note in the name of his/her surety to the effect of the joint and several liability for the total amount of the debt without his/her consent after being delegated only the power of representation

[1] Article 126 of the Civil Code / [2] Article 126 of the Civil Code

[1] Supreme Court Decision 69Da964 delivered on September 30, 1969 (No. 17-3, 141), Supreme Court Decision 71Da471 delivered on May 24, 1971 (Gong1994Ha, 1814), Supreme Court Decision 93Da21521 delivered on May 27, 1994 (Gong1994Ha, 1814), Supreme Court Decision 98Da27470 delivered on January 29, 199 (Gong199Sang, 366), Supreme Court Decision 9Da47525 delivered on February 11, 200 (Gong20067)

50,000

Defendant (Attorney Shin Ho-hoon, Counsel for the defendant-appellant)

Seoul District Court Decision 99Na10423 delivered on July 16, 1999

The judgment below is reversed. The case is remanded to the Seoul District Court Panel Division.

The grounds of appeal are examined.

1. A. According to the reasoning of the lower judgment and the reasoning of the first instance judgment cited by the lower court, the lower court recognized the following facts by comprehensively taking account of the evidence adopted in that judgment.

In around 196, the Plaintiff sold the real estate owned by himself with knowledge of the fact that the registration of provisional disposition was made, but became at the risk of criminal complaint from his buyer, and provided legal counseling services. Nonparty 1 received KRW 13 million from the Plaintiff under the pretext that Nonparty 1 dealt with the Plaintiff’s civil and criminal issues.

On April 197, the plaintiff filed a complaint with Nonparty 1 as a violation of the Attorney-at-Law Act. On the 30th day of the same month, Nonparty 1 proposed that he will mislead himself and return KRW 110 million,000,000,000,000,000,000,000, added interest to the money that he acquired by himself. However, as Nonparty 1 did not have any separate property, the non-party 1 did not reach a specific agreement because it did not have any specific property, the non-party 1 did not take the attitude of the non-party 1, who is his own seat, and it was difficult to reach an agreement that there was no sufficient property. Accordingly, the non-party 1 was the defendant who was his seat. In that place, the defendant committed the non-party 1's obligation to return KRW 110,000,000 to the plaintiff as a joint and several surety, while promising him to do so, set up the housing and mortgage on its security.

On May 1, 1997, the following day, the defendant set up documents necessary for the establishment of a promissory note under the above agreement and delegated the right of representation to the non-party 1 on the creation of the collateral security. On behalf of the defendant, the non-party 1 delegated the right of representation on the establishment of the collateral security to the non-party 1. The non-party 1, on behalf of the defendant, an application for the establishment of a collateral security on the real estate stated in the attached list of the judgment below (hereinafter referred to as the "real estate of this case") to the certified judicial scrivener on behalf of the defendant. The plaintiff requested the issuance of a promissory note under the name of the offerer in preparation for a request for the subsequent request for the issuance of a credit security to the plaintiff, despite the non-party 1,000 won on May 1, 1997.

B. Based on the above findings, the lower court upheld the first instance judgment accepting the Plaintiff’s claim for the instant Promissory Notes as it is, based on its determination as follows.

In other words, the part under the name of the defendant among the promissory notes of this case, which was forged by Nonparty 1 using the seal entrusted by the defendant for the establishment of the right to collateral without the consent of the defendant. However, on April 30, 1997, the defendant promised to guarantee jointly and severally with the plaintiff 1,10,000 won to the plaintiff on the non-party 1's obligation to return the amount of 1,100 million won to the plaintiff, and decided to set up the right to collateral on the house and its site owned by the defendant as collateral. In fact, in establishing the right to collateral, the non-party 1 issued the Promissory Notes on behalf of the defendant in the sense that the defendant guaranteed the defendant's obligation to the plaintiff. Thus, it should be deemed that there is a justifiable reason to believe that the plaintiff has the right to issue the Promissory Notes under the name of the defendant on behalf of the defendant. This is the same even if the plaintiff did not confirm the existence of the right to issue the promissory notes to the defendant.

2. If an act of a bill was performed by a person without authority by using the so-called form of a bill or a signature and seal affixed to the person himself/herself under the name of the person with no authority to act on behalf of the person with the bill, it is not an unauthorized representation but an act of a bill. However, even in such a case, there is a reason to believe that the third party has the authority to act on the bill to do so to the person who actually engaged in the act of a bill. If there is a reason to assume the principal's responsibility, the provision on the expression of a bill under the Civil Act shall apply mutatis mutandis to the act of a bill under the representation method, as in the case of an act of a bill by proxy, and shall be liable to the principal (see, e.g., Supreme Court Decisions 69Da964, Sept. 30, 1969; 71Da471, May 24, 199; 98Da27470, Jan. 29, 199).

However, the court below recognized that the Defendant guaranteed the Defendant’s obligation to return KRW 110 million to Nonparty 1 in return to the Plaintiff jointly with the draft of the trial, and furthermore, based on the fact of recognition, determined that there is a justifiable reason for the Plaintiff to believe that Nonparty 1 was entitled to issue bills in the name of the Defendant in the manner of signing and sealing as proxy, and recognized the Defendant’s liability for expressive representation in light of the following.

In other words, according to the reasoning of the judgment of the court of first instance and the reasoning of the judgment of the court of first instance cited by the court below, the court below rejected the statement of evidence No. 7 and the testimony of the witness of the court of first instance, the witness of the court of first instance, the witness of the court of first instance, the witness of the court of first instance, the witness testimony of the court of first instance, the witness of the court of first instance, and the witness testimony of the witness of the court of first instance, as evidence, and recognized the defendant's joint and several liability facts, and rejected the defendant's statement

However, the evidence No. 7 (No. 78 of the record) is the remainder remaining after the issuance of the Promissory Notes in this case and removing them from the book of the bill, and it stated that the Promissory Notes in this case was issued as a claim and obligation between the original and the Defendant with the date of issuance, payment, and the issuer of the Promissory Notes in this case. However, insofar as there is no evidence to deem that the Promissory Notes were issued according to the Defendant’s intent, it cannot be used as evidence to prove the joint

On the other hand, the witness testimony of the court of first instance is related to the reasons why the defendant 1 delivered the bill of this case to the non-party 1 on the ground of the plaintiff's severe fault and the reasons why the non-party 1 made the bill of this case. The purport of the testimony is to fully recognize the defendant's joint and several liability in light of the above circumstances, and it does not directly hear the fact that the defendant agreed to the non-party 1's joint and several liability amount of 110 million won against the plaintiff, and the contents of his testimony are not evidence to recognize the defendant's joint and several liability. The defendant's testimony is not evidence to prove the fact that the defendant's seal impression is 10 million won, and it is sufficient that this house is 200 million won." Even if the defendant stated that the defendant's testimony is the same as the above, it is sufficient to understand that the defendant's joint and several liability amount of the real estate of this case is less than the value of the real estate of this case as security.

However, on April 30, 197, at the office of Nonparty 1, 1997, three parties, such as the defendant, the heart and the defendant's wife, etc., agreed to jointly and severally guarantee the full amount of 1.1 million won against the plaintiff of Nonparty 1 (the testimony, records, 86 pages). At the time, the defendant, "at this time (the title of the real estate of this case), only one of the above (the title of this case), shall be sufficient to give a guarantee of 1.10 million won," and the remaining will of joint and several sureties for the total amount of the debt (the testimony, records, 143 pages) is giving testimony to the purport that it is difficult for the defendant to believe the contents of the testimony as soon as possible in light of his personal status status as the plaintiff is each and in particular, it is difficult for the defendant to agree to the purport that it is difficult for the defendant to present his testimony only within the scope of the defendant's testimony or material value at the time of the first instance trial.

In addition, if the defendant, as the above witness's testimony, intended to stand a joint and several surety against the defendant of the non-party 1,10,000 won in full as well as the physical guarantee, there is no evidence to prove that there was any discussion about the preparation of the document, even though the preparation of the document has been discussed naturally in light of the precedents, so there is no evidence to prove that there was any discussion about the preparation of the document (in accordance with the facts of recognition of the original trial, the defendant at the time only set up only the document of establishment of the right to collateral security and put it on the following day). In addition, this is a critical material to doubt the credibility

As such, the evidence adopted by the court below to acknowledge the facts of joint and several liability of the defendant was either unrelated to the facts requiring proof or difficult to believe. On the other hand, at the time of the agreement on April 30, 1997, the statement of the above non-party 1 husband and wife stated that "at the time of the agreement on April 30, 1997, the defendant expressed to the plaintiff that the value of the real estate in question owned by the plaintiff does not reach the whole debt amount to the plaintiff of the non-party 1, the defendant would be limited to limited liability within the limit of 60 million won, which is within the secured value range" (Records 157,158,202 of the record), and the statement of the non-party 1 was made by himself at the time of taking his own responsibility in the investigation procedure to impose criminal liability against the above Article of the promissory note against himself, and thus, it is not reliable, and it is not possible for the defendant to dismiss the maximum debt amount as well as the maximum debt amount of the non-party 1 to the defendant.

On the other hand, the witness attitude of the court of first instance, which was directly present at the time of the agreement on April 30, 1997, was known to the joint issuer of the Promissory Notes and the witness attitude of the court of first instance, which was directly present at the time of the agreement on April 30, 1997, and was only established at the office of a certified judicial scrivener for the establishment of a collateral security, and only there was a problem in the preparation of the Promissory Notes and the issuance of the Promissory Notes, and at the time of the issuance, they testified to the effect that they are not responsible for all the face value of the face value of KRW 110,000,000 for each of them, but they are aware that they are liable for each half of the face value of the Promissory Notes (Records 14,115, page 15, page). If the defendant's responsibility in this case is denied, the testimony of the court of first instance, which denied the defendant's joint and several liability, constitutes a case where they voluntarily give testimony to themselves, therefore, it seems difficult to deny its credibility.

In light of the above circumstances, as acknowledged by the court below, it cannot be deemed that the defendant guaranteed the entire debt to the plaintiff of the non-party 1 as well as the physical guarantee. Rather, it is reasonable to view that the defendant was liable for physical limited liability within the scope of the secured value of the real estate of this case. Thus, unlike the initial agreement that the plaintiff, who is aware of the contents of the agreement as the direct party to the agreement, was in contact with the bill of this case with the non-party 1,10,000 won, the plaintiff knew that it was not authorized, or even if he knew of the death, he did not confirm whether the plaintiff was authorized to do so, and even if he was authorized to do so, the bill of this case does not constitute "the case where there is a justifiable reason to believe that the person who actually performed the bill of this case has the authority to do the act of the bill of this case" and thus, it cannot be applied by analogy the provision of expression agency.

Nevertheless, the court below rejected the statements of the above non-party 1 married with the above non-party 1's husband and wife without any reasonable reasons. Rather, the court below found that the defendant guaranteed the non-party 1's obligation to return the amount of KRW 110 million against the plaintiff, jointly and severally with the draft, with the belief that the defendant had a right to issue bills in the name of the defendant on behalf of signing and sealing the bill in the name of the non-party 1, and recognized the defendant's liability to represent the defendant. The court below did not err in the misapprehension of the rules of evidence, which affected the conclusion of the judgment. The part of the grounds of appeal assigning this error is with merit.

3. Therefore, the judgment of the court below shall be reversed, and the case shall be remanded to the court below for a new trial and determination. It is so decided as per Disposition with the assent of all participating Justices.

Justices Lee Yong-woo (Presiding Justice)