2012 Gohap6883 Objection

u* *

Seoul

Attorney Seo-sik et al., Counsel for the defendant

A Stock Company

Seoul

Representative In-house Directors**

Attorney Lee Jae-soo, Counsel for the plaintiff-appellant

April 16, 2013

April 30, 2013

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

No. 207 of this deed drawn up by a notary public against the plaintiff by the defendant on July 11, 2007

584 No. 584 No. notarial deeds of a monetary loan for consumption shall be allowed to enforce compulsory execution.

1. Facts of recognition;

A. The status of the parties (1) B (the former trade name: B; hereinafter referred to as “B”) is a company with the purpose of sports complex business, etc. The purpose of which is to engage in sports complex business. Park MaMa is the representative director of B, and the plaintiff is Park MaMaMaMa. (2) The defendant is a company with the purpose of general travel business, real estate sale and lease business, etc., and C (hereinafter referred to as “C”) is a company with the objective of condominium sales business. This* as the internal director of the defendant and C, the representative of the company of Jeju Development Co., Ltd. (hereinafter referred to as “ Jeju Development Association”) is a company with the aim of agricultural experience and tourism business. The representative of Jeju Development Association, the representative director of Jeju Development Association, * Park MaMa Ma Ma Ma Ma Ma Ma Ma Ma is a company with the objective of selling condominiums.

B. The preparation of a notarial deed (1) Park Mem Mem Mem Ma, around July 2007, borrowed KRW 500 million business funds from the Defendant and delegated * the preparation of a non-loan agreement with the Defendant.

(2) Right** On July 11, 2007, a notary public entrusted a law firm with the preparation of a notarial deed on a monetary loan contract as an agent of creditor and debtor, and on July 7, 2007 between the original and the defendant.

11. On July 9, 2007, the Defendant lent KRW 500 million to the Plaintiff. The Plaintiff paid to the Defendant KRW 500 million on December 2007, and the Plaintiff did not pay interest but paid damages for delay at the rate of KRW 66% per annum if the principal is delayed, and there is no objection even if compulsory execution is conducted immediately when the above obligation is not performed.

C. On December 21, 201, the Defendant, based on the instant notarial deed, received a seizure and collection order on the Plaintiff’s deposit return claim against the Plaintiff’s bank, etc. based on the Seoul Southern District Court Decision 2011TTTTT 201TT 30362.

[Ground of recognition] Facts without dispute, Gap evidence 1-1-4, Gap evidence 2-1-2-8, witness Park Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem Mem

2. The plaintiff's assertion

Compulsory execution based on the Notarial Deed of this case shall be dismissed for the following reasons.

A. The Plaintiff did not enter into a monetary loan agreement with the Defendant, but did not confer a power of representation as to the conclusion of a monetary loan for consumption** There is no certificate of representation as to the conclusion of a monetary loan for consumption. Therefore, the Notarial Deed of this case** without this authority and has no effect.

B. The Plaintiff was transferred KRW 600 million to the Defendant from B. The Plaintiff is offset against the Defendant’s loan claims by having the said claim as an automatic bond.

3. Effect of the notarial deed of this case

A. The facts of recognition (1) is accompanied by the power of attorney (No. 2-3, hereinafter referred to as "the power of attorney of this case") in the Plaintiff's name and the Plaintiff's certificate of personal seal impression (No. 2-6). (2) The power of attorney of this case is delegated to the Plaintiff ***** the power of attorney, * both agents of this case **. The power of attorney of this case is approved. The letter of delegation mentioned below includes the Plaintiff's name and the Plaintiff's seal is affixed next to the letter of delegation.

[Ground of recognition] Unsatisfy, Gap evidence 2-1 to 8, the purport of the whole pleadings

B. Determination

The indication of an execution recognition and recognition that a notarial deed may have an executory power as an executory power is a litigation against a notary public, so 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, and the creditor asserts its effect, and the authenticity of the portion directly produced by a notary public of a notarial deed is presumed to have been established, but it is presumed that the fact that it is presumed to be the authenticity of the portion directly produced by a notary public of the notarial deed is merely that the agent has entrusted the preparation of the notarial deed and that there is a legitimate agent authority (see Supreme Court Decision 2002Da18114, Jun. 28, 2002). However, if the seal of the holder of a title deed signed and sealed on a private document is reproduced by his seal, it is presumed that the authenticity of the document is based on the intention of the holder of the title to prepare the notarial deed, and once the authenticity is presumed to have been made by the entire document pursuant to Article 358 of the Civil Procedure Act (see.

Since it is recognized that the stamp image next to the Plaintiff’s name stated in the column of “the delegating” is based on the Plaintiff’s seal, the authenticity of the entire proxy of this case is presumed to have been established, and there is insufficient evidence to acknowledge that the proxy of this case was forged only by the witness Park Ma Ma. testimony of the witness, and there is no other evidence to acknowledge it.

As above, inasmuch as the authenticity of the power of attorney of this case, which is a disposition document, is recognized as the authenticity of the power of attorney of this case, the plaintiff delegated to the plaintiff * the right of attorney of this case as stated in the letter of delegation of this case, with the commission of the preparation of the authentication of this case as to the money loan contract of this case with the purport that "the plaintiff, Park Ma, and D borrow KRW 500 million from the defendant

4. Whether the defendant's loan claims cease to exist by offsetting;

A. The facts of recognition (1) B’s promotion and suspension of the main apartment construction project (a) B, on May 18, 2005, shall be as follows: (a) Kim Ma Ma Ma Ma Ma Ma Ma Ma Ma Ma Ma Ma Ma Ma Ma Ma Ma Ma 2,575 (hereinafter “instant project site”) and the main apartment construction permit right (hereinafter “instant building permit right”).

The "Real Estate and Business Right Transfer Agreement" was concluded to purchase the price of KRW 7 billion.

(B) After that, B promoted the business of newly constructing and selling the main apartment in the instant project site, but around 2007 suspended the said business. (2) The Defendant’s in-house director (A) as the representative of the Defendant’s in-house director in the process of the purchase of the instant project site, etc. (A) * was recommended to purchase the instant project site and the instant building permit right. The Kim & Kim purchased the instant project site and the instant building permit from Jeju Development Cooperative, as the representative director of B, and then requested to prepare data on the instant project site and the instant building permit and the instant cost incurred after purchasing the instant building permit and the instant site and the instant site and the instant site and the instant site and the instant site and the instant building permit were sold to 0 billion won after obtaining the instant building permit and selling the instant site and the instant building permit to 30 billion won.

(C) Gambling Meste Meste. Meste. ** on April 11, 2007, * on the business site of this case and the right to the construction of this case on the spot of Kim & Kim, Kim & Lee, “B” sold the business site of this case and the right to the construction of this case to the representative director of food-service C**** on April 11, 2007, and promise to follow the method and conditions of payment *** on the purchase price, without any objection.” (No. 3 evidence 3-1, hereinafter referred to as the “instant letter of undertaking”) signed a letter of undertaking stating that “The seal of the representative director of B was affixed to the business site of this case * on the business site of this case and the right to the construction of this case * on April 11, 2007, and delivered it to the defendant ** on the condition that the purchase fund was concluded by the defendant Nann corporation again, and made a contract to the defendant party.

(D) Accordingly, on April 16, 2007, B entered into an agreement with the Defendant to sell the instant project site at KRW 9 billion (hereinafter referred to as the “instant agreement”). Kim & Lee shall sign the instant agreement (Evidence No. 6) as a observer. Meanwhile, around January 9, 2006, the Jeju Development Association issued the shares of the Jeju Development Association and the real estate and Jeju Development Association’s new redevelopment project to secure the right to receive the price of the housing redevelopment project, which had been conducted on the Jeju-gun-gun-gun-gun-gun-gun-gun-gun-si, and KRW 5 billion (hereinafter referred to as the “instant agreement”). In accordance with the agreement with the Defendant, the Defendant purchased all of the housing redevelopment project rights of KRW 21 billion, which had been received from the members of the instant redevelopment association, for the purpose of the instant redevelopment project, and without being paid the price of the housing redevelopment project to the members of the Association in accordance with the above agreement.

(F) Under the above circumstances, B and the Defendant paid the down payment of KRW 1 billion in cash at the time of the instant agreement, and paid the intermediate payment of KRW 3 billion in cash, not in cash, but in a certificate of investment issued by Jeju Redevelopment Cooperative (hereinafter “ Jeju Redevelopment Cooperative,” but this appears to have been erroneous in entering Jeju Redevelopment Cooperative). As seen above, the Defendant could exercise the claim against B pursuant to the certificate of investment, but at the same time, the Defendant agreed to substitute the intermediate payment of KRW 3 billion in the way of not exercising the right pursuant to the certificate of investment by delivering the certificate of investment at the same time as the document of registration of ownership transfer regarding the instant project site was delivered to B. Meanwhile, the Defendant agreed to take over the collateral security obligations, etc. established on the instant project site in lieu of some of the remainder of KRW 5 billion, and agreed to resolve the remainder by consultation with B on the transfer registration of ownership regarding the instant project site.

(G) The instant agreement does not state the instant construction permit right in the item column, unlike the instant agreement.

(3) The Defendant’s payment of the down payment and the remainder, and the ownership transfer registration (A) B of the instant site received both the down payment and the remainder from the Defendant pursuant to the instant agreement.

4. 23. The Defendant completed the registration of ownership transfer regarding the instant project site. However, B did not transfer to the Defendant all the rights related to the instant building permit. (b) On the other hand, as a person who arranged the instant transaction and arranged for the instant transaction, was on the job at the time of preparing the instant letter of undertaking and preparing the instant letter of agreement, and stated that the subject matter of sale pursuant to the instant agreement includes the instant building permit right.

(4) Around March 2012, B and the Plaintiff’s offset (A) transferred KRW 600 million among the intermediate payment claims against the Defendant pursuant to the instant agreement to the Plaintiff, and notified the Defendant of the assignment of the said claim on March 29, 2012. (b) On April 3, 2012, the Plaintiff expressed his/her intent to offset the said amount against the Defendant’s loan claims against the Plaintiff on an automatic claim.

[Ground of recognition] The evidence Nos. 3 through 6, Eul evidence Nos. 2, Eul evidence Nos. 3-1 through 3, Eul evidence Nos. 4 and 5, witness Kim & & 5, and the purport of the whole pleadings and arguments

B. The defendant's nature of the part payment obligation against B

On the premise that the Plaintiff was transferred KRW 600 million to the Defendant from B, it is argued that the Defendant offsets the above claim against the Defendant’s loan claims. In other words, the issue is whether the Defendant’s obligation to pay part payments to B is the issue. In other words, as the Defendant originally decided to substitute part payment KRW 3 billion to B with the investment certificate issued by the Jeju Redevelopment Cooperative, not in cash, the Defendant’s obligation to pay part payments is examined in order to set off (1) whether the Defendant fulfilled the obligation to deliver part payments to B, and (2) whether the Plaintiff may set off the part payments claim transferred from B with the part payments claim transferred from B. (1) Whether the Defendant fulfilled the obligation to deliver the investment certificate (A).

The Defendant deposited a certificate of investment issued by Jeju Redevelopment Partnership, which decided to deliver an intermediate payment of KRW 3 billion to B. Therefore, the Plaintiff’s assertion that the Defendant did not deliver a certificate of investment is without merit.

(B) Determination:

B It is recognized that at the time of the instant agreement, the Defendant agreed to substitute for the payment of intermediate payments by receiving the investment certificate issued by the Jeju Redevelopment Cooperative without receiving the intermediate payment KRW 3 billion from the Defendant in cash. Meanwhile, according to the evidence No. 6, the Defendant’s deposit on April 11, 2013 with the consideration for the transfer of the instant construction permit right to the Defendant at the same time, and the Seoul Central District Court No. 16 of the Jeju Rural District Court’s Property Order No. 2013. However, it is insufficient to recognize that the above recognition alone constitutes a investment certificate issued by the Defendant to deliver the investment certificate to B instead of an intermediate payment KRW 3 billion, and there is no other evidence to acknowledge otherwise. Accordingly, it cannot be deemed that the Defendant fulfilled the obligation to deliver the investment certificate to B pursuant to the instant agreement. (2) Whether the Plaintiff’s intermediate payment claim can be offset against the intermediate payment claim by the intermediate payment claim.

At the time of the instant agreement, the Defendant decided to deliver to B a certificate of investment issued by the Jeju Redevelopment Cooperative, instead of an intermediate payment of KRW 3 billion. Accordingly, the Defendant may assert that the Plaintiff would refuse to pay money and deliver a certificate of investment in accordance with the instant agreement in cases where the Plaintiff, who received a claim against KRW 600,000,000 from the intermediate payment from B or B, seeks an intermediate payment against the Defendant

The Plaintiff’s loan obligation aims at money, while the Defendant’s intermediate payment obligation is an obligation for the purpose of an investment certificate, and the above two obligations are not the same kind of obligation, so it cannot be said that there is a situation of offset, that is, a situation of offset.

Meanwhile, at the time of the instant agreement, the Defendant issued the Jeju Redevelopment Cooperative’s issuance and kept an investment certificate equivalent to KRW 3 billion guaranteed by B, and was entitled to exercise its claim in accordance with the said investment certificate. However, upon delivery to B of the said investment certificate, the Defendant decided not to exercise its claim pursuant to the said investment certificate and to substitute payment of KRW 3 billion intermediate payment for payment of KRW 3 billion. In full view of the overall purport of pleadings in Kim & Kim testimony, the Defendant did not deliver the said investment certificate to B after the instant agreement, but did not exercise its rights in accordance with the investment certificate. Furthermore, the Defendant, at the time of the instant agreement, did not deliver the said investment certificate to B in lieu of the joint and several sureties’s payment under the instant recruitment agreement, instead of exercising its claim under the said investment certificate, was decided not to substitute for payment of KRW 3 billion in the form of intermediate payment. In light of the agreement and the circumstances leading up to the determination of the price, and the circumstances surrounding the instant agreement, the Defendant did not issue the instant obligation to the Plaintiff for payment of KRW 700 billion.

(B) Whether an intermediate payment claim is accompanied by a defense

1) The instant agreement as to whether the instant building permit was included in the subject matter of sale under the instant agreement, unlike as indicated in the instant agreement, does not state the instant building permit right as the subject matter of sale, but in light of the following, the instant building permit right is also included in the subject matter of sale under the instant agreement.

① The instant arrangement was concluded on April 11, 2007, which was 5 days from the date on which the letter of undertaking was drawn up and issued to Park MaMa Ma. * this case*

② In relation to B, the other party to the instant undertaking is C, and the other party to the instant undertaking is the Defendant. However, both C and the Defendant are C, this* as a representative * In the instant undertaking, the party to the instant undertaking was C, but the purchase fund was from the Defendant.

For this reason, the buyer changed the buyer into the Defendant when entering into the instant agreement. Kim & Kim is a person acting as an intermediary for the said transaction, and was in the same place when preparing the instant agreement and preparing the instant agreement. However, Kim & Kim stated that the instant agreement included the instant building permit right in the subject matter to be traded pursuant to the instant agreement.

③ On May 18, 2005, B purchased the instant project site and the instant building permit from Kim MaMa, KRW 7 billion. The sales price pursuant to the instant agreement concluded on April 16, 2007 increased to KRW 2 billion. This reflects Park MaMa* Ma*’s purchase of the instant project site and the instant building permit, which was based on the premise that the instant building permit was included in the subject matter of sale.

④ Park MaMaMaMa has issued a report completion certificate on the construction of multi-family housing on the ground of the instant project site to the Defendant before the conclusion of the instant agreement.

Therefore, B is obligated not only to implement the procedure for ownership transfer registration on the instant project site, but also to transfer the instant building permit right in accordance with the instant agreement.

2) Whether the Defendant’s obligation to pay part payments and B’s obligation to transfer the instant building permit rights concurrently implemented

If a set-off is allowed by making a claim bearing a right of defense attached with an automatic claim against another obligation, such set-off is a result of a loss of the other party’s opportunity to exercise the right of defense by either of the set-offs, and such set-off is not permissible by nature (Supreme Court Decision 2002Da23, Aug. 23, 2002).

Supreme Court Decisions 25242Da1084 Delivered on October 28, 1969, etc.

The instant agreement does not have any provision regarding the due date for the obligation to transfer the instant building permit. However, the Defendant agreed to deliver the certificate of investment to B at the same time as the documents necessary for the registration of transfer of ownership with respect to the instant building site were delivered from B, and the Defendant agreed to take over the collateral security obligations, etc. established in the instant project site instead of partial payment of KRW 5 billion, and the remainder of KRW 3550,550,000,000,000,000, which were to be dealt with in consultation with B, separate from the delivery of the documents on transfer of ownership with respect to the instant building site. In light of this point, at least the remainder determined by B and the Defendant through consultation, the due date for the payment of KRW 355,55 million,00,000,000,000,000,000,000,0000,00

It is also said that the fulfillment period of obligations has already arrived.

Ultimately, the Defendant’s intermediate payment obligation to be performed by delivering the certificate of investment to B should be performed first than the obligation to transfer the instant building permit to the Defendant. However, the Defendant’s intermediate payment obligation and the obligation to transfer the instant building permit to B, upon the arrival of the due date between B and B’s obligation to transfer the instant building permit, the Defendant’s intermediate payment payment obligation and the obligation to transfer the instant building permit in the simultaneous performance relationship (see Supreme Court Decision 2001Da27784, 27791, Jul. 27, 2001). Therefore, since the Plaintiff’s intermediate payment claim against the Defendant transferred from B is related to the transfer of the instant building permit and the simultaneous performance obligation as seen above, set-off against the instant claims cannot be allowed by nature.

(C) Therefore, the Plaintiff’s above assertion, based on the premise that the Plaintiff may set off an intermediate payment claim transferred from B as an automatic claim, is without merit.

4. Conclusion

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

Judges Jeon Soo-dae

Judges Kim Gi-sung

Judges Park Gyeong-ok