2015 Gohap201804 Loans

2015 Gohap 202630 (Joint), damages, losses, etc.

Nonghyup Bank Inc.

1. A;

2. B (Correction ex officio as Real Name C);

3. D;

4. E.

5. Korea;

July 21, 2016

September 1, 2016

1. The Plaintiff: (a) Defendant A and B jointly share KRW 600,688,250; and (b) Defendant D jointly with Defendant A and B share KRW 360,412,950 of the above amount; and (c) Defendant A and D share 12.65% per annum from March 7, 2015 to September 1, 2016; (b) 15% per annum from the following day to the date of full payment; and (c) Defendant B and D share 360,412,950 of the above amount.

From March 7, 2015 to September 1, 2016, 5% per annum and 15% per annum from the next day to the day of full payment.

2. The plaintiff's claims against the defendant E and Korea and the remaining claims against the defendant A, B and D are dismissed, respectively.

3. Of the costs of lawsuit, 1/10 of the portion arising between the Plaintiff and the Defendant A shall be borne by the Plaintiff; the remainder shall be borne by the Plaintiff; 1/10 of the portion arising between the Plaintiff and the Defendant B shall be borne by the Plaintiff; the remainder shall be borne by the said Defendant; 2/5 of the portion arising between the Plaintiff and the Defendant D shall be borne by the said Defendant; and the remainder shall be borne by the Plaintiff

4. Paragraph 1 can be provisionally executed.

The Defendants jointly pay to the Plaintiff 600,688,250 won with 12,85% interest per annum from March 7, 2015 to the final service date of a copy of the complaint of this case, and 20% interest per annum from the next day to the day of complete payment.

1. Basic facts

A. Defendants B, F, and so forth: (a) Defendant B, Defendant B, real name C, hereinafter referred to as “Defendant B” or “B (1951 birth)” combined with each other; (b) Nonparty B, Non-Party B (Death on September 2, 2014), and H, etc. conspired to acquire loans, etc. by providing the relevant land as collateral, etc. for a land on which no long-term transaction was made with the first patrolman, and the owner’s resident registration number is not indicated on the registry.

2) Meanwhile, on the other hand, on January 6, 1983, or on January 11, 1983, the ownership transfer registration was completed in the name of Nonparty B (the birth of 1932) (the birth of 1932) who was located in Jung-gu in Seoul, Jung-gu without a resident registration number on January 6, 1983, or on January 11, 1983, and there was no transaction for a long-term period after the ownership transfer registration was completed.

3) Accordingly, on April 2014, Defendant B, using a certified copy of the court’s decision on the renewal of name forged, made the name “C” to be “B,” and Defendant B, using the fact that the name after the name of the above Defendant was the same as that of “B (1932 birth)” as that of each of the instant forests and fields, pretended to be the real owner of each of the instant forests and fields, completed the registration of ownership transfer based on trade. The Defendant B, as if the real owner of each of the instant forests and fields, provided each of the instant forests and fields as collateral to financial institutions, etc., thereby gathering loans by fraud with F, H, etc.

4) In order to make the address, transfer date, etc. of the abstract of the resident registration record card of this case coincide with the address of B (1932) which is the true owner of each forest of this case, Defendant B issued an abstract of the resident registration record card of this case at the Seocho-dong Community Service Center (M) on April 11, 2014, and through H, Defendant B had the defective owner of the above abstract of the resident registration record card of this case record card of this case under paragraph (1) of the column for the address, transfer date, and change date in the descriptions of the above abstract of the resident registration record card of Jung-gu Seoul Special Metropolitan City, Jung-gu, Seoul Special Metropolitan City, N, 1983-10-1, 1983-10-10-101, and one copy of the abstract of the above Defendant’s resident registration record card of this case.

5) On April 2014, Defendant B, through H, had the person under whose name was omitted enter the said Defendant’s resident registration number (P) in the owner’s resident registration number column of each forest of this case in the forest of this case, forged three copies of the forest register of each forest of this case in the forest of this case.

B. The process for the transfer registration of ownership in F as to each forest of this case

1) Meanwhile, Defendant D is a certified judicial scrivener who operates a certified judicial scrivener office at the time of residence, and on April 2014, Defendant D obtained a loan from the financial institution under the name of the purchaser F with respect to each of the instant forest land located in Pyeongtaek-si from Defendant A, who was a police officer at the time of residence, as the purchaser of the instant forest land was unable to obtain a loan from the financial institution, and received a loan by offering a security to the bank with Defendant A as the debtor, and accepted the registration

2) Accordingly, Defendant B, by using that name was registered as “B (1951)” as above, proposed to Defendant D as if he was the genuine owner B (1932), and delegated the registration applicant B (1951), F, grounds for registration, and the date of registration as “trade on April 11, 2014,” and presented the power of attorney in the name of B (1951), a certificate of personal seal for real estate sale (6974 on April 11, 2014), a copy of the forged resident registration record card, and a copy of each of the original book of this case, which was forged, and lost the registration certificate.

3) On April 30, 2014, Defendant D, without knowing the forgery of the relevant documents, drafted a document verifying that he/she is the person liable for registration with the driver’s license for a motor vehicle B (1951) under Article 111 of the Rules on the Registration of Real Estate (hereinafter “instant document”).

4) On May 2, 2014, Defendant D filed an application for registration of transfer of ownership (hereinafter referred to as “application for registration before the transfer of this case”) with the Suwon District Court’s registration and the transfer of ownership (hereinafter referred to as “application for registration”), and attached documents (hereinafter referred to as “the attached documents”) with respect to each forest of this case between B (1951) and F (hereinafter referred to as “the attached documents”), with the power of representation as to the sales contract of April 11, 2014, and the application for registration of transfer of the said B and F’s preparation, etc., the original certificate of personal seal for sale of real estate; the original copy of the forged resident registration card; the original copy of the resident registration card; the confirmation document of this case; the copy of the driver’s license; and the certified copy of

5) The documents, excluding the application for the transfer of this case and the certified copy of the forestry register among the documents attached to this case, stated that B (1951 students) who pretended as the resident registration numbers of B (1951 students) but the owner’s column for the certified copy of the forestry register was stated as the real owner B (1932 students).

6) On May 2, 2014, Defendant E, working in the Suwon District Court under the jurisdiction of Defendant Republic of Korea, without knowing that he/she was an application for registration of transfer by forged documents, entered the registration of transfer of ownership in the name of F from B (hereinafter “instant registration of transfer of ownership”) and the registration of transfer of ownership in the name of F (hereinafter “instant registration of transfer of ownership”) in the registry as examined below.

C. Loan from the Plaintiff and registration of the establishment of a mortgage on each forest of this case

1) On May 2, 2014, the resident North Korea Branch Co., Ltd. (hereinafter “Plaintiff Nonghyup”) consisting of KRW 1 billion loans between Defendant A and KRW 1 billion, interest rate fluctuation rate on April 30, 2015, and interest rate fluctuation rate (based on new COFX standard rate during a month).

The loan contract of this case (hereinafter referred to as "the loan contract of this case") was concluded, and the plaintiff transferred KRW 1 billion to the defendant A on the same day.

2) As to the instant loan contract, on May 2, 2014, F completed the registration of establishment of a mortgage holder, the Plaintiff, the maximum debt amount of 1.2 billion won, and the first priority priority creation of a mortgage against the obligor A (hereinafter referred to as the “registration of establishment of a mortgage”) with respect to each forest of the instant case. On the other hand, F borrowed money from Nonparty R, and subsequently completed the registration of establishment of a mortgage with respect to R, the mortgagee and the maximum debt amount of 25 billion won, and the debtor F, and each of the above applications for registration of establishment of a mortgage was also conducted on behalf of Defendant D.

3) On June 20, 2014, the Suwon District Court: (a) notified Defendant D, etc. on June 20, 2014 that the registration of ownership transfer in the name of F with respect to each forest of the instant case; and (b) the registration of ownership transfer in the name of the Plaintiff and R was concluded by a forged document; and (c) the registration of ownership transfer in the name of the Plaintiff was revoked on July 23, 2014; and (d) the registration of ownership transfer in the name of R was revoked on August 12, 2014. The process of the lawsuit brought by Defendant B guilty and R.

1) Defendant B, due to the aforementioned criminal act, was sentenced to a conviction of four years of imprisonment with prison labor (U.S. District Court Decision 2014Gohap19, Jun. 1, 201) due to the fraud, public document forgery, uttering of forged public document, false entry into public electronic records, etc., and the use of false entry into public electronic records, etc., and is currently underwater.

2) In a case where R filed a lawsuit against Defendant D and Republic of Korea seeking damages, Defendant D, a certified judicial scrivener, and a registrar affiliated with the Defendant Republic of Korea, who neglected to verify the person liable for registration and to verify the formal authenticity of attached documents, thereby recognizing the liability of the Republic of Korea for damages suffered by R due to negligence, and on which the registration officer, who is an employee of the Defendant Republic of Korea, neglected to verify the identity of the person liable for registration and to establish the formal authenticity of attached documents, and the judgment was rendered to limit the liability of the said Defendants to 70% (Seoul High Court Decision 2015Na2018587) by recognizing the ratio of the fault on the part of R as 30%, without any dispute over the grounds for recognition (Seoul High Court Decision 2015Na201857). The evidence No. 1 (including each number

2. The plaintiff's assertion

A. As the principal obligor under the instant loan agreement, Defendant A is obligated to pay KRW 600,688,250, which falls under the balance of the principal of the loan, and damages for delay from March 7, 2015, which is the day following the date of final repayment of the principal.

B. Defendant B, in collusion with F, is obligated to pay damages for delay from March 7, 2015, which is the day following the date on which the principal is repaid, since Defendant B acquired a loan from the Plaintiff after completing the registration of ownership transfer in the name of F with respect to each forest of this case in collusion with F, and then acquired a false registration of ownership transfer from the Plaintiff.

C. Defendant D is obligated to pay damages for delay from March 7, 2015, which is the day following the date on which the final principal is repaid, to the Plaintiff, on which the Plaintiff, who entered into the loan agreement of this case, incurred damages equivalent to the loan by neglecting to verify the ownership transfer registration of this case and the establishment registration of the neighboring mortgage, even though the owner of each forest of this case was B (1932).

D. Defendant E and the Republic of Korea are jointly liable to compensate the Plaintiff for damages incurred to the Plaintiff for tort, as well as to pay damages for delay from March 7, 2015, on the following day after the date of the final repayment of principal amount, because Defendant E and the Republic of Korea caused damages to the Plaintiff by neglecting to verify the ownership registration of this case and the establishment registration of a neighboring mortgage on each forest of this case, even if the relevant documents were to have been forged. However, Defendant E and the Republic of Korea neglected to verify the ownership registration of this case and the establishment registration of a neighboring mortgage on each forest of this case.

3. Determination as to the claim against Defendant A

A. Establishment of contractual liability

According to the aforementioned facts and the purport of the entire pleadings, it is recognized that the Plaintiff loaned KRW 1 billion to Defendant A, and that the interest during the period has been lost due to the cancellation on July 23, 2014 by the registration of creation of a neighboring mortgage on each forest of this case offered as security of the above loan claim, and that the period during which the above loan claim was due was due. Meanwhile, the Plaintiff is obligated to pay the Plaintiff the remainder of the principal after receiving the acquisition tax and the registration tax from the Defendant for each month, and the Plaintiff acquired the right to claim the return of the acquisition tax and the registration tax from the Pyeongtaek-si office on December 350, 2014, and then paid the remainder of the principal after appropriating the principal to the principal on March 6, 2015. Thus, barring any special circumstance, Defendant A is obligated to pay the Plaintiff 600,688,250 won and delay damages therefrom.

B. Determination as to Defendant A’s assertion

Defendant A used most of the funds borrowed from the Plaintiff for the purpose of repaying F’s personal debt, etc., and claimed that the amount used by the Plaintiff is not large, or that the Plaintiff’s claim should be dismissed as there is no negligence on the part of the principal in the course of the loan contract or the security of this case. However, Defendant A is obliged to pay the loan regardless of the existence of Defendant A’s negligence on the part of the principal debtor of the loan contract of this case, as long as the loan of this case was used for any purpose, and as the establishment registration of a neighboring mortgage conducted to secure the loan contract of this case was null and void.

Therefore, Defendant A is obligated to pay to the Plaintiff 600,688,250 won and damages for delay calculated at the rate of 12.65% per annum from March 7, 2015 to September 1, 2016, which is the date when the decision was rendered by the Plaintiff, to dispute on the existence and scope of the obligation to pay to the Plaintiff, and the amount of damages for delay calculated at the rate of 15% per annum under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings, from the following day to the date of full payment (the Plaintiff is the Defendant A).

From March 7, 2015 to the final delivery date of a copy of the instant complaint, the Plaintiff is obligated to pay 12,85% per annum and 20% per annum from the next day to the day of full payment. However, according to the evidence No. 19-1, the agreement interest rate of arrears is 12.65% per annum. On the other hand, pursuant to the provision on statutory interest rate of Article 3(1) of the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings amended by Presidential Decree No. 26553, Sept. 25, 2015, the interest rate of 15% per annum is applied after October 1, 2015. Thus, the part seeking payment exceeding 12.65% per annum from March 7, 2015 to the day of full payment, and the part claiming payment exceeding 15% per annum from the day after this judgment is sentenced, is without merit).

4. Determination as to the claim against Defendant B and D

A. Liability for damages caused by Defendant B’s tort

1) Establishment of liability for damages

According to the aforementioned facts and the purport of the entire pleadings, Defendant B, as if the above Defendant was the owner of each forest of this case, conspired with F, etc. to acquire loans by providing F as security after completing the registration of ownership transfer based on sale and purchase with F, and then completing the registration of ownership transfer and the registration of ownership creation in the instant case by forging the relevant documents. The aforementioned registration was cancelled on July 23, 2014 because it constitutes the invalidation of the cause of the registration of ownership creation in the instant case, and there was a proximate causal relation between Defendant B’s tort and the damages suffered by the Plaintiff due to the cancellation of the registration of ownership creation in the surrounding areas. Thus, Defendant B is liable to compensate the Plaintiff

2) Scope of damages

Furthermore, the Plaintiff’s losses incurred by Defendant B’s tort should be deemed to be the amount of money loaned to the obligor within the scope of the maximum debt amount within the scope of the value of the pertinent real estate, which is the object of collateral security (see, e.g., Supreme Court Decision 98Da27623, Apr. 9, 199). In this case, the Plaintiff’s losses incurred by the cancellation of the registration of collateral security by Defendant B’s tort, within the limit of 1.2 billion won of the maximum debt amount of the establishment registration of collateral security (the value of each forest of this case), which is within the limit of the value of each forest of this case, shall be KRW 60,688,250, and delay damages incurred by the loan, which is the balance of the loan, within the limit of 1.2 billion won of the maximum debt amount of the establishment registration of collateral security (the maximum debt amount of each forest of this case).

B. Liability for damages caused by Defendant D’s tort

1) Establishment of liability for damages

A) Relevant legal principles

According to the purport of Article 51 of the Registration of Real Estate Act and Article 25 of the Certified Judicial Scriveners Act, when there is no information about completion of registration by a person responsible for registration, the identification under Article 51 of the Registration of Real Estate Act, which a certified judicial scrivener or an attorney-at-law (hereinafter referred to as "certified judicial scrivener, etc.") shall, in principle, be conducted in lieu of a registrar's duty to verify whether the person entrusted an application for registration and the person responsible for registration on the registry are the same person. Thus, a certified judicial scrivener, etc. is obligated to verify the identity with due care required in the course of performing his/her duties. In cases where any circumstance is not discovered to suspect that a delegating person is the principal or his/her agent, a certified judicial scrivener, etc. is able to verify the identity only with such certificate, but where there are circumstances to suspect otherwise in the process of verification, he/she is obligated to verify the identity in detail by various means (see, e.g., Supreme Court Decision 207Da429

B) Determination

Considering the above facts in light of the legal principles as seen earlier, Gap evidence 25, Eul evidence 6 and 7, and the following circumstances acknowledged by the overall purport of arguments, i.e., defendant Eul is obligated to verify whether he/she is the same person as a certified judicial scrivener with professional and technical knowledge on registration, and as such, defendant Eul lost the certificate of registration of each of the forest land in this case. Further, the defendant Eul did not state the resident registration number of Eul (1932) who is the actual owner of each of the forest land in this case and stated only his/her name, and thus, the defendant Eul is obliged to verify the identity of the actual owner with the above defendant Eul's loan in comparison with the copy of each of the forest land register of this case. 30, the copy of each of the forest land register of this case was issued by the same person as the defendant Eul and the copy of each of the above 40, although it was found that the above defendant Eul violated the legal principles as 50, and thus, the defendant Eul did not have a certified copy of each of the defendant Eul's book.

C) limitation of liability

(A) Relevant legal principles

Joint tort liability does not individually seek damages from each tortfeasor's act, but is held liable against each tortfeasor's act jointly committed. As such, when the court offsets the victim's negligence, even if the ratio of negligence against each tortfeasor is different from each other, the victim's negligence shall not be individually assessed as a joint tortfeasor's negligence, but shall be assessed as a whole as a whole as to all the joint tortfeasor's negligence. However, in assessing the victim's negligence for offsetting the negligence, it does not mean that if there is a person who has intentionally committed a tort among the joint illegal actors, the victim shall be deemed not to have been negligent, or that all the tortfeasor cannot make a claim for offsetting the negligence (see, e.g., Supreme Court Decision 2009Da68408, Feb. 11, 2010).

(B) Determination

In light of the above legal principles, Defendant D’s tort constitutes a joint tort with Defendant B, etc. However, unlike Defendant B who intentionally committed a tort, Defendant D, who committed a tort by negligence, may be restricted by the Plaintiff’s negligence.

In light of the above facts and the purport of evidence Nos. 3 and 25 as seen earlier, the Plaintiff was aware that the FF’s purchase of each of the forest land of this case with approximately eight billion won in total announced land price as of 2013 was caused to the loan contract of this case with Defendant A as the principal debtor because it did not prepare any cost necessary for the transfer of real estate. ② As such, each of the forest land of this case is not much difficult to obtain a loan of KRW 1 billion from the financial institution as security because the value of collateral is sufficiently secured, the FF’s demand for the loan as the purchaser of real estate is not the principal debtor, and it is deemed that the FF’s address is inferior in terms of the Plaintiff’s real right relationship with Defendant A, and the location of each forest land of this case is equal to that of the Plaintiff 2, which is located at the time of borrowing the forest land of this case without any reasonable distance from each of the above loan to the Defendant 4, taking into account the circumstances where each of the forest land of this case was located.

2) Scope of damages

As seen earlier, the ordinary damages suffered by the mortgagee due to the trust in the registration of ownership transfer to the real estate and the cancellation of the registration of ownership transfer after the loan was made shall be equivalent to the amount contributed by the mortgagee to be able to acquire the security right by valid registration of ownership transfer, i.e., the maximum debt amount within the scope of the value of the above real estate, which is the object of the collateral security, within the scope of the maximum debt amount. Thus, the damages incurred by the Plaintiff by Defendant D’s tort during the cancellation of the registration of creation of the collateral security of this case shall be 360,412,950 won and damages for delay equivalent to 60% of the balance of the loan within the scope of the value of each forest of this case, within the scope of the value of each forest of this case.

3) Determination as to Defendant D’s assertion

Defendant D’s assertion that the amount of damages should be reduced to the amount equivalent to the secured value of the pertinent real estate because Defendant A had set up a collateral on the land and buildings in which he had resided at the time of residing in the Plaintiff. As such, Defendant D’s claim for damages was established on May 2, 2014 where the loan was paid, and even if Defendant A created a collateral on the said real estate, it cannot be deemed that part of the above damage claim was extinguished, unless the actual repayment was made even if Defendant A created a collateral on the said real estate. Thus, the above assertion by Defendant D is without merit.

Therefore, jointly with Defendant A, Defendant B is obligated to pay damages for delay calculated at an annual rate of 60,68,250 won, Defendant D’s 360,412,950 won, and damages for delay calculated at an annual rate of 5% per annum as stipulated in the Civil Act from March 7, 2015 to September 1, 2016, which is the date of this judgment, and 15% per annum as stipulated in the Act on Special Cases Concerning Expedition, etc. of Legal Proceedings from the following day to the date of full payment (the Plaintiff is obligated to pay damages for delay exceeding 12.85% per annum from March 7, 2015 to the date of final delivery of a copy of the complaint of this case, and from the following day to the date of full payment, to the date of 15% per annum, 205% per annum from the next day to the date of full payment. However, there is no special evidence that the Defendants were 15% damages for delay in payment due to this case’s unlawful act.

5. Determination as to claims against Defendant E and Korea

The Plaintiff asserts that Defendant E is liable for damages caused by tort, and that Defendant E is liable for State damages. According to the overall purport of the Plaintiff’s statements and arguments, Defendant E is acknowledged as having failed to verify the identity of Defendant B in the process of examining the application for ownership transfer registration, but on the other hand, the Plaintiff transferred the instant loan to Defendant A around May 2, 2014, while the receipt of the application for ownership transfer registration and the registration of the establishment of a neighboring mortgage on May 2, 2014 was recognized as having been completed around 10:05, May 7, 2014, and each of the above registrations was completed at around 17:30, and the time when the Plaintiff’s loan was completed was completed at around 17:30, and the time when the above loan was completed is transferred, and thus, the Plaintiff trusted the possibility that the loan will be made in the future, and trust is not recognized as having been made in the process of examining the loan and trust of Defendant E, and there is no reason to acknowledge that it would be no other trust between the Plaintiff’s loan and trust.

6. Conclusion

Therefore, the plaintiff's claims against the defendant A, B, and D shall be accepted within the scope of the above recognition, and each claim against the defendant E, Korea, and the remainder of the claims against the defendant A, B, and D shall be dismissed as it is without merit. It is so decided as per Disposition.

The presiding judge, assistant judge and police officer;

Judge Park Sang-hoon

Promotion as Judge

1) For the above crime, C shall order the name "C" as "B", and on April 8, 2014, upon obtaining permission from the court to change the name "B" from "C", and submitted a certified copy of the Incheon District Court Decision 2014Nom319 to the head of Gwanak-gu in Seoul Special Metropolitan City. However, the actual applicant for the Incheon District Court Decision 2014Nom319 dated April 1, 2014 and the principal of the case shall be "C," not "C," and the date of the decision shall also be "B," and the certified copy of the above name decision submitted to the head of Gwanak-gu in Seoul Special Metropolitan City is forged, and the head of Gwanak-gu in Seoul Special Metropolitan City shall be "the name of the person who is the applicant and the principal of the case shall be revoked under Article 18 of the Act on the Registration, etc. of Family Relationship and Article 70 of the Rules on the Registration, etc. of Family Relationship", and shall be revoked by the head of Gwanak 204.