[기타(금전)][미간행]
In a lawsuit between a creditor and a principal obligor where a judgment in favor of the principal obligor has become final and conclusive as to the existence or scope of the principal obligation, whether the guarantor may refuse to perform his/her surety obligation by invoked the judgment in favor of the principal obligor (negative)
Article 218 of the Civil Procedure Act, Articles 430 and 433 of the Civil Act
Korea
Defendant (Law Firm Nitter International, Attorneys Park Jae-hwan et al., Counsel for the defendant-appellant)
Seoul High Court Decision 2013Na2032152 decided October 1, 2014
The appeal is dismissed. The costs of appeal are assessed against the defendant.
The grounds of appeal are examined.
1. The argument in the grounds of appeal is that the principal obligation was reduced in an arbitral award between the Plaintiff and the instant principal obligor, and that the principal obligation was also accepted as a defense of simultaneous performance of ice. Therefore, the lower court should reduce the Defendant’s guaranteed obligation, the guarantor, and accept the Defendant’s defense of simultaneous performance in accordance with the principle of non-performance of the guaranteed obligation and the principle of defense of the principal obligor of the guarantor. However, the lower court erred in determining otherwise.
2. However, in a lawsuit between a creditor and the principal debtor, even where the judgment in favor of the principal debtor has become final and conclusive in whole or in part as to the existence or scope of the principal obligation, the res judicata of the judgment does not affect the guarantor. Therefore, notwithstanding the principle of non-performance of the guaranteed obligation, the guarantor cannot refuse the performance of his surety obligation by invoked the judgment in favor
3. Examining the above legal principles in light of the above, even in the case where the defendant, a guarantor, asserts that ice's obligation was reduced in the arbitral award, or the defendant's assertion of concurrent performance defense held by iced's guarantor, the res judicata effect between the plaintiff and iced's arbitral award does not extend to the defendant, and thus, the court below's decision as to the above argument is not binding on the res judicata effect of the arbitral award. Therefore, even though the court below rejected the defendant's assertion of simultaneous performance defense without reducing the defendant's guarantee obligation unlike the arbitral award, it cannot be said that the judgment below erred by misapprehending the legal principles as to the defense of simultaneous performance or omission of judgment as to the defendant's assertion in violation of logical and empirical rules, and by misapprehending the legal principles as to the defense of simultaneous performance
4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Min Il-young (Presiding Justice)