K&P Law Firm won the case on behalf of the defendant in a case in which the plaintiff demanded payment of money based on a notarial deed for a loan.
In this case, A, the defendant’s father, borrowed money from the plaintiff and prepared a notarial deed for the loan with her son, the defendant, as a joint and several surety.
1. Background Facts
Plaintiff and A filed a notarial deed on July 14, 2016, stating that “the plaintiff loaned 100 million won to A on July 14, 2016, at an annual interest rate of 24%, and the payment deadline was set by August 30, 2016” (Hereinafter referred to as 'Notarial Deed in this case').
At that time, A said that he had been granted the power of representation by his son, the defendant, and the power of representation included the notarial deed conveying that "the defendant provides a joint and several suretyship for the borrowed debts stated in the notarial deed in this case."
A brought the defendant's certificate of seal imprint, seal imprint, resident registration card, and a power of attorney regarding the entrustment of drafting the notarial deed in this case, and prepared the notarial deed in this case with the plaintiff.
2. Plaintiff's claim
A, the father of the defendant, is a person who has been granted legal powers of representation by the defendant.
3. Efford of K&P Law Firm
In order to win this case, K&P Law Firm had a wide range of evidence collection activities, such as 1) handwriting examination, 2) credit card usage history inquiry, 3) making a transcription of voice recording, 4) checking the date of taking photos, 5) checking the transportation card usage history, 6) inquiry of confirmation of employment record, etc.
4. K&P’s Rebuttal and proof
Defendant has not granted A the right of representation regarding the joint and several suretyship for the above loan debt. A kept the identity card and seal of the defendant, took them without permission, and wrote the notarial document in this case as if he had been granted a legitimate right of representation by the defendant.
Since there is no justifiable reason for the plaintiff to believe that A has the right of representation regarding the defendant's joint and several suretyship, the effect of the joint suretyship does not extend to the defendant according to the legal principle of apparent authority.
A brought the defendant's certificate of seal imprint, seal imprint, resident registration card, and a power of attorney regarding the entrustment of drafting the notarial deed in this case, and prepared the notarial deed in this case with the plaintiff.
The defendant's seal impression certificate used in preparing the notarial deed in this case was issued by A on behalf of the defendant. However, the handwriting of the defendant's name, resident registration number, and address written in the principal section in the power of attorney submitted by A for issuing the certificate of seal impression is different from the defendant's handwriting. It can be seen that the defendant did not personally write the power of attorney for the issuance of the certificate of seal impression necessary for preparing the notarial deed in this case.
The defendant had a phone call with the plaintiff on October 12, 2016, about three months after the notarial document was drawn up in this case. When the defendant heard about the notarial deed in this case from the plaintiff, he said that he did not know about the drafting of the notarial deed in this case.
When the notarial deed in this case was written, the address on the resident registration of the defendant was Gwacheon, the same as the address on the resident registration of A. However, the defendant worked for a construction company in Incheon at the time, and since the accommodation was also in Incheon, he did not visit the house in Gwacheon often where A lived.
Through examining the defendant's card usage history, it was proven that most of the payments were made outside of Gwacheon.
There is no evidence to admit that A talked to or discussed with the defendant about preparing the notarial deed in this case. It does not seem that the defendant frequently contacted A while working at Incheon after leaving his home in Gwacheon.
5. Judgment of the Court
The court accepted the rebuttal of the K&P Law Firm and dismissed the plaintiff's claim.
K&P Law Firm
Attorney Taejin Kim
Incheon Songdo, South Korea
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