2016Da202848 Loans

Korea Deposit Insurance Corporation for the bankrupt Korea Savings Bank

A

Daejeon District Court Decision 2015Na102635 Decided December 18, 2015

June 10, 2016

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

The grounds of appeal are examined.

1. Ratification of an invalidation or an unauthorized representation is a single act with knowledge of the invalidation, etc. and with the effect of such an act to vest in his/her own, and may be done by implied means. Thus, in a case where there are circumstances to deem that the principal sufficiently understand the legal status faced by such an act and, even if there are circumstances to deem that the outcome of such act belongs to himself/herself based on the truth, ratification may be deemed impliedly ratified (see, e.g., Supreme Court Decision 2010Da83199, Feb. 10, 2011).

2. Review of the reasoning of the lower judgment and the evidence duly admitted reveals the following facts.

A. (1) On May 8, 2008, Korea Mutual Savings Bank Co., Ltd. (hereinafter “Korea Mutual Savings Bank”) concluded a credit transaction agreement with the borrower to lend KRW 300 million to the borrower (hereinafter “the first credit transaction agreement of this case”). The Defendant’s name is stated in the column of the lender of the first credit transaction agreement of this case, and the Defendant’s seal impression is affixed next to that column. The Defendant’s personal seal impression and abstract of resident registration card are attached.

On May 8, 2008, the amount of KRW 70 million was withdrawn from the Korea Savings Bank account under the name of the Defendant to the national bank account under the name of the Defendant. Among them, KRW 70 million was withdrawn on May 13, 2008, and was transferred to the national bank account under the name of the Defendant. On May 15, 2008, KRW 25 million was withdrawn and transferred to the national bank account under the name of the Defendant.

(2) On August 18, 2008, Korea Savings Bank entered into a credit transaction agreement with a borrower to lend KRW 300 million to the defendant (hereinafter “the second credit transaction agreement of this case”). The column for the borrower of the second credit transaction agreement of this case includes the defendant’s name, and the defendant’s seal impression is affixed thereto, and the defendant’s certificate of personal seal impression issued on August 18, 2008 by proxy and the defendant’s resident registration record card issued by F are attached.

From the account of Korea Savings Bank in the name of the Defendant, the amount of KRW 150 million on August 18, 2008 was withdrawn from the account of Korea Savings Bank in the name of the Defendant.

It was transferred to the national bank account in the name of the defendant, and the amount of KRW 136 million was withdrawn on August 20, 2008, and was transferred to the national bank account in the name of the defendant.

(3) On June 28, 2011, Korea Savings Bank entered into an additional agreement to increase the loan limit to KRW 500 million with the borrower as the defendant (hereinafter “the instant additional agreement”). The borrower column of the said additional agreement includes the defendant’s name in the column, and the defendant’s seal impression is affixed thereto, and the defendant’s personal seal impression was issued on June 27, 201. The defendant’s personal seal impression, resident registration card copy, and resident registration record card abstract were submitted.

On June 28, 201, from the Korea Savings Bank account in the name of the Defendant, KRW 93 million was withdrawn from June 28, 201 to the national bank account in the name of the Defendant, and the remainder of KRW 93 million was deducted from the borrower’s interest. On July 6, 2011, KRW 60 million was withdrawn and transferred to the national bank account in the name of the Defendant. On August 10, 201, KRW 20 million was withdrawn and transferred to the one bank account in the name of the Defendant.

(4) As above, loans deposited into a national bank or a single bank account in the name of the Defendant were all withdrawn and used thereafter.

B. (1) On July 7, 201, Korea Savings Bank concluded a mortgage contract with regard to the obligations of loans worth KRW 500 million pursuant to the instant credit transaction agreement and additional agreement with respect to the land owned by the Defendant (hereinafter “instant land”). On the same day, the Korea Savings Bank established a mortgage contract with the debtor and the mortgagee as the Defendant (hereinafter “instant mortgage contract”). On the same day, the Korea Savings Bank established a mortgage contract with regard to the instant loan obligations of KRW 500,000,000,000,000,000,0000,0000 won.

(2) The written contract to establish the instant mortgage contains the name of the Defendant as the obligor and the mortgagee of the right to collateral security, and the Defendant’s seal impression is affixed, and the upper part of the contract bears the rubber of the judicial scrivenerJ.

(3) On July 7, 201, a certified judicial scrivener J prepared a document confirming the person liable for registration attached to the instant mortgage contract, stating that the establishment of a mortgage on the instant land was made by a certified judicial scrivener on July 7, 201; for the purpose of registration, the name and personal information of the defendant as the person liable for registration; the name and personal information of the defendant as the person liable for registration; the special article; and the eyebrow is clearly a face with a snowbrow; and a copy of the defendant’s resident registration certificate is attached.

(4) At the time of entering into the instant mortgage contract, the Defendant’s residence was Seoul, and all of the office and the office of the Certified Judicial Scriveners J and the Korea Savings Bank were in the Chungcheongnam-gun, Chungcheongnam-gun.

3. The lower court determined that (1) recognized the fact that F indicated the Defendant’s name and affixed his seal on behalf of the Defendant in each of the instant credit transaction agreements on behalf of the Defendant, and that it was insufficient to recognize that the Defendant granted F, etc. comprehensive power of representation; and (2) recognized the fact that the establishment registration of a mortgage on the instant land owned by the Defendant was completed on the instant land, but the F testified to the effect that F affixed the Defendant’s seal impression on the instant additional agreement and the mortgage contract, the lower court rejected the Plaintiff’s assertion of ratification of the Plaintiff’s act of unauthorized Representation, on the sole basis of the foregoing facts, by fully understanding the Defendant that each of the instant credit transaction agreements was concluded in the name of the Defendant and approved F to vest in its effect.

4. However, the lower court’s determination that did not recognize ratification of the Defendant’s act of unauthorized representation solely for the foregoing reasons is difficult to accept for the following reasons.

A. According to the records, the Plaintiff asserted that each of the above loans was deposited into the Defendant’s national bank account or one bank account at the first instance court and the lower court, and that the Defendant was obligated to repay because it used the loans deposited into the Defendant’s account. The above assertion appears to include the Defendant’s intent of using the loans deposited in the Defendant’s account directly or with the Defendant’s consent to confirm the Defendant’s act of lending. As such, the process of receiving and using each of the above loans should also be considered

B. Furthermore, the following circumstances are revealed according to the aforementioned facts and the evidence duly adopted.

(1) Although it is insufficient to recognize that the defendant did not affix his/her seal directly to each of the instant credit transaction agreements and that the defendant granted his/her comprehensive power of representation to F, etc. as determined by the court below, since most of the loans under each of the instant credit transaction agreements and additional agreements was deposited into a national bank or a single bank account under the name of the defendant, it can be deemed that the defendant received each of the above loans, or that the defendant consented or consented to the receipt of each of the above loans using the defendant's account.

(2) In this case where the validity of the establishment of a national bank or a single bank account in the name of the defendant is not clearly asserted, if a large amount of loans deposited in the above account was withdrawn and used, it is in accord with the rule of experience to deem that the defendant knew the fact of such deposit and the reason of such deposit and used it, or that the defendant consented or consented to such withdrawal and use at least.

(3) In addition, even after the loan amounting to KRW 195 million under the credit transaction agreement of this case was deposited into the Defendant’s national bank account, the Defendant provided F with his seal imprint, personal seal impression, certified copy and abstract of resident registration card, etc., and the seal imprint certificate, personal seal impression, certified copy and abstract of resident registration card were used in the additional credit transaction agreement, etc. entered into under the Defendant’s name.

(4) The instant mortgage contract was drafted at the office of Korea Savings Bank on July 7, 201. However, since the Defendant residing in Seoul was the office of a certified judicial scrivenerJ located in Chungcheong-gun M on the same day, and was stamped directly on the written confirmation of the person liable for registration required for the registration for the instant mortgage contract, it should be deemed that the Defendant was aware of the fact that the instant confirmation document and the instant mortgage contract were drafted at least at the time of affixing a person responsible for registration.

However, since the written contract to establish a mortgage of this case states the debtor as the defendant and serves as the maximum debt amount of 650 million won, the defendant knew that he was responsible for the debt to Han Savings Bank as the debtor, and after checking the circumstance of the occurrence of the debt and the amount of the debt, it is reasonable to view that the establishment registration of a mortgage of this case was completed as the mortgagee of the right to collateral security of this case.

(5) In addition, on June 28, 2012, the Plaintiff sent a notice of delinquency in the payment of the principal and interest of the loan under each of the instant credit transaction agreements and additional agreements to the Defendant by content-certified mail, but did not reply to the demand for repayment from the Defendant before the instant lawsuit is brought. Moreover, in relation to the preparation of each of the instant credit transaction agreements and additional agreements, the Defendant filed a complaint against F by forging private documents, etc. and did not appear to have been investigated or punished by F. Therefore, examining the above circumstances in light of the legal principles as seen earlier, even if F entered into each of the instant credit transaction agreements and additional agreements without authority and received the loan under the Defendant’s name, the Defendant may be deemed to have ratified F’s unauthorized representation by explicitly denying the obligation to repay the loan upon knowing the existence of such agreement.

5. Nevertheless, the lower court determined otherwise on the ground that it was insufficient to recognize ratification by the Defendant on the ground of the testimony to the effect that F, a circumstance that could not interfere with the Defendant’s recognition of ratification of F’s act of unauthorized representation, affixed the Defendant’s seal impression on the instant additional agreement and mortgage agreement.

Therefore, the judgment of the court below is erroneous in the misapprehension of legal principles as to the ratification of unauthorized Representation, which affected the conclusion of the judgment by failing to exhaust all necessary deliberations. The ground of appeal assigning this error is with merit.

6. Therefore, without examining the remaining grounds of appeal, we reverse the judgment below, and remand the case 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 Lee Dong-won

Justices Lee In-bok

Justices Kim In-bok, Counsel for the defendant

Justices Kim Gin-young