2. The costs of appeal shall be borne by the Defendant.

The defendant shall pay to the plaintiff 259,711,164 won and 182,860,000 won with 23% interest per annum from May 12, 2014 to the day of full payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim against the defendant is dismissed.

(a) Facts of recognition;

1) The Defendant carried out the business of newly constructing and selling the instant commercial building (hereinafter “instant commercial building”) on the land outside Suwon-si and six parcels, both of which are “○○○○○○” (hereinafter “instant commercial building”).

2) On March 5, 2004, the Defendant concluded a business agreement with Seoul Mutual Savings Bank (hereinafter “Seoul Mutual Savings Bank”), Postal Service Construction Co., Ltd. (hereinafter “Co., Ltd.”), and Daol Real Estate Trust (hereinafter “Daol Real Estate Trust”), with respect to part payments loans to buyers (hereinafter “instant loan business agreement”), and the Defendant and the Postal Service Construction Co., Ltd. as a contractor jointly and severally guaranteed the principal and interest of part payments owed by buyers.

3) On April 30, 204, the non-party 1 (the non-party 1) of the first instance trial Co-Defendant 1 (the non-party 1) entered into a sales contract with the defendant on April 30, 2004, under which the sales price of the commercial building of this case shall be KRW 104,669,989, and the sales price of the commercial building of this case shall be KRW 104,69,989, and the sales price of the commercial building of this case shall be KRW 110,013,671, among the commercial buildings of this case, the sales price of this case shall be KRW 110,013,671 (hereinafter "the sales contract of this case"). For the payment of the intermediate payment pursuant to the above sales contract, the sales contract of this case shall be concluded with the Seoul mutual savings bank for a loan of 47,040,000 won and KRW 47,040,000 per annum.

4) On July 26, 2004, Nonparty 2 concluded a contract with the Defendant to sell the instant commercial building (number 4 omitted) at KRW 131,015,038 (hereinafter “instant parcelling-out contract”) and concluded a loan agreement with the Seoul Mutual Savings Bank for the payment of intermediate payment under the said parcelling-out contract at KRW 18,890,000 on August 13, 2004 and KRW 18,890,000 on September 1, 2004 with each of the above loans (hereinafter the above loans collectively referred to as “the second loan”). After that, Nonparty 1 acquired the status of the instant sub-sale contract from Nonparty 2 and acquired the obligation of Nonparty 2 on April 5, 2006 with the exemption of Nonparty 2’s debt.

5) On April 30, 2004, Nonparty 3 entered into a loan agreement with the Defendant to receive the loans of KRW 88,010,937 with each of the instant commercial buildings (No. 5 omitted), and KRW 5,500,000 on August 13, 2004 and KRW 25,50,000 on September 1, 2004 with the Seoul Mutual Savings Bank for the payment of the intermediate payment under the said parcelling-out contract (hereinafter “instant third loan”). Thereafter, Nonparty 4 acquired the status of the instant commercial building No. 3 from Nonparty 3 and took over the status of the instant loan No. 40 on October 205 from Nonparty 36 and took over the status of the instant loan No. 40 on October 4, 2005.

6) Seoul Mutual Savings Bank directly transferred the loans to the payment account of the sales proceeds of the first, second, and third loans (hereinafter “each of the instant loans”) as delegated by the obligor pursuant to the instant contract. The Seoul Mutual Savings Bank directly transferred the loans to the payment account of the sales proceeds of the instant first, second, and third contracts (hereinafter “each of the instant sales contracts”).

7) Seoul Mutual Savings Bank was declared bankrupt on September 26, 2013 by Seoul Central District Court 2013Hahap139, and the Plaintiff was appointed as a trustee in bankruptcy on the same day.

8) As of May 11, 2014, the principal and interest of each of the instant loans is KRW 259,711,164, and the principal and interest of the instant loans are KRW 182,860,000.

[Ground of recognition] Unsatisfy, Gap evidence 1-1-3, Gap evidence 2-1 through 4, Gap evidence 3-5, Gap evidence 9-5, Gap evidence 10, Eul evidence 2-1 through 6, Eul evidence 2-3, and the purport of the whole pleadings

B. Determination

According to the above facts, as a joint and several surety of each of the instant loans, the Defendant is obligated to pay the Plaintiff damages for delay calculated at the rate of 23% per annum, which is the agreed damages for delay, from May 12, 2014 to the date of full payment, for each of the instant loans and interest of KRW 259,711,164, and for the principal of KRW 182,860,000, which is the principal.

2. Judgment on the defendant's assertion

A. The parties' assertion

1) Defendant

The repayment period of the first loan obligation of this case is August 13, 2005 and September 1, 2005, which is one year from the date of the loan, and the repayment period of the second and third loan obligation of this case is August 13, 2006 and September 1, 2006. Since the lawsuit of this case was filed on May 30, 2014, the five-year commercial extinctive prescription period already expired, each of the loan obligations of this case against the plaintiff of this case against the plaintiff of this case, who is the principal debtor, was extinguished by the prescription period, and as long as the principal obligation became extinct by the prescription period, the Defendant’s guarantee obligation of this case is naturally extinguished by the incidental nature of the guaranteed obligation of this case.

2) Plaintiff

The repayment period of each of the instant loans was August 13, 2009 or September 1, 2009, and the Plaintiff filed the instant lawsuit before the lapse of five years from that time. As such, the extinctive prescription was interrupted.

Even if not, the Defendant paid monthly interest from each of the instant loans to March 30, 2010. At the time, the Defendant concurrently acquired each of the instant loans from the number of persons who are the principal debtor, or transferred the right to manage obligations, and paid the interest on behalf of the principal debtor on behalf of the principal debtor, and thus, it does not coincide with the repayment of the principal debtor. Accordingly, the extinctive prescription of each of the instant loans was interrupted as the approval of the principal debtor’s obligation.

Even if it does not so, the Defendant, at least, cannot claim the extinction of the guaranteed obligation on the ground of the expiration of the prescription period of the principal obligation, or such assertion is not permissible as it violates the good faith principle, since it is not possible for the Defendant to claim the extinction of the guaranteed obligation on the ground of the expiration of the prescription period of the principal obligation.

Even if not, the Defendant took over each of the loans of this case from the primary debtor as a discharge, and thus, the Defendant is liable to repay each of the loans of this case regardless of the expiration of the prescription period of the primary obligation.

(b) Fact of recognition;

1) The instant loan service agreement concluded by Seoul Mutual Savings Bank with the Defendant, etc. regarding part payments loans include the following:

(1) The lending period for part payments shall be 12 months from the handling date of the part payments (Article 2 (3)).

(2) The interest rate on loans shall be 12% per annum as stipulated in the letter of credit transaction concluded by the Seoul Mutual Savings Bank with a buyer (Article 4 (1)), and the interest on loans by a buyer shall be paid in the order of execution of the funds agreed upon at the time of loan of remaining land (Article 4 (2)). The order of execution of funds shall follow the order of execution of the funds agreed upon at the time of loan of remaining land (Article 4 (3)).

(3) Where loans are not repaid despite the cancellation, cancellation or termination of a sales contract with a buyer, the Seoul Mutual Savings Bank may request the defendant and the construction of postal services to perform the joint and several liability obligations (Article 7 (1) 2).

(4) Seoul Mutual Savings Bank shall deposit loans it handles pursuant to this Agreement into a deposit account opened and managed by the trust of real estate (Article 10) upon delegation of payment by buyers (Article 10).

(5) Where a contract for sale in lots has been invalidated, cancelled or terminated, loans by a buyer shall lose the benefit of time, and the sale price to be refunded to a buyer shall be appropriated preferentially for loans owed to Seoul Mutual Savings Bank (Article 12 (1)).

2) On March 26, 2004, the Defendant entered into a business agreement with four financial institutions, including Seoul Mutual Savings Bank, etc. (hereinafter “each loan bank”), to receive a loan of KRW 16,500,000 with the instant business fund, and agreed as follows (hereinafter “instant business agreement”).

(1) The Ulsan Real Estate Trust Co., Ltd. with the Defendant entered into a loan management agency contract with the trustee of the same real estate trust, and the Multilater Real Estate Trust shall open a deposit account in the name of the Multilater Real Estate Trust in order to manage the instant project funds, and perform the duties delegated by the Defendant under the loan management agency contract (Articles 3(3) and 7(1)).

(2) All revenues concerning the business of this case, such as the principal of loan, proceeds from sale in lots or rent, overdue charges of purchasers, interest income of financial institutions, etc., and refund money on taxes and public charges, shall be deposited into the sales revenue management account opened in the name of the real estate trust (Article 17 (1)).

③ With respect to withdrawal of revenues deposited in the account for management of revenues from sale after the commencement of the instant business, the Defendant’s borrowings from each lending bank, public charges, and withdrawal of the remaining business expenses excluding trust fees shall be made with the seal of a multi-real estate trust upon a written request by the Defendant through confirmation of postal administration construction, and the period of withdrawal shall be within seven days from the date when the multi-real estate trust receives a written request (Article 17(3)).

④ 분양수입금관리계좌의 자금집행순서는 ㉠ 1순위: 제세공과금, 설계·감리비, 광고홍보비, 분양경비 등 필수적 사업추진비와 피고가 각 대출은행으로부터 차입한 대출금이자, ㉡ 2순위: 다올부동산신탁의 대리사무보수 및 피고의 운영경비, ㉢ 3순위: 상환기일이 도래한 각 대출은행들의 대출원금, ㉣ 4순위: 기성율에 따른 우정건설의 공사대금, ㉤ 5순위: 피고의 사업수익금

3) On March 26, 2004, after the conclusion of the instant business agreement, the Defendant entered into a loan agreement with the Fund Management Agency on March 26, 2004, and the delegated affairs stipulate the fund management for the funds borrowed under the name of the Defendant with respect to the instant business as well as the receipt and management of the intermediate payment loans to the buyers in the financial institution (Article 3(1)(b) and (d)).

4) Each of the instant sales contracts is determined as follows.

(1) Interest on the part payment loans by a buyer shall be borne by the defendant until before the date of designation of occupancy notified by the defendant and borne by the buyer thereafter (Article 2 (5)).

(2) The defendant may terminate the contract without a peremptory notice where the buyer violates the contract for sale in lots, such as delinquency in the sale price. In such cases, the down payment shall belong to the defendant as a penalty, and the defendant shall return to the buyer the amount obtained by deducting the amount of damages incurred by the defendant due to a cause attributable to the buyer from the money received from the buyer, within 90 days, and where the contract for sale is terminated due to a cause attributable to the defendant, the amount calculated by adding the interest amount calculated by applying the interest rate

5) At the time of each of the instant loans, Seoul Mutual Savings Bank made a loan by setting the loan period of one year, and the Defendant requested an extension of the loan period as follows on July 28, 2005, when the loan interest was paid in accordance with each of the instant sales contracts, and requested an extension of the loan period on March 21, 2006 after six months thereafter.

In this case, the loan period for the intermediate payment lender of the commercial building in this case, which is included in the main text, has arrived at the maturity of one year as follows at the time of the initial contract, but the maturity of the intermediate payment loan has been requested for about six months after the completion of the commercial building, and the outstanding loan from the agricultural cooperative after the completion of the commercial building is expected to be repaid, and it is difficult for the seller to call documents again and seal for more than 80 persons to whom the maturity has been extended, and it is difficult for them to call up for documents again and seal to whom the maturity has been extended and then the main time has been replaced by the notification after the maturity period has been extended and all the problems caused by this shall be known that us, the guarantor and the guarantor shall be jointly and severally responsible.

6) Seoul Mutual Savings Bank accepted the Defendant’s request and extended the lending maturity by six months, and thereafter extended the lending period by six months in six consecutive months by the same method, and finally, the repayment period of each of the instant lending contracts was extended by August 13, 2009 or September 1, 2009.

7) The Defendant experienced difficulties in selling the instant commercial building due to real estate competition, etc., and caused delay in the completion of the construction of the instant commercial building, which led to a request for cancellation of the sales contract made by buyers. From December 2005, the Defendant rescinded the sales contract with the buyer who wants to cancel the sales contract, with the content that “the buyer waives all rights regarding the sales contract, such as the down payment, and the intermediate payment is responsible for the Defendant Company.” The Defendant rescinded the sales contract under the same condition as Nonparty 1, respectively.

8) On April 17, 2007, the Defendant notified Seoul Mutual Savings Bank of the fact that multiple sales contracts (6,286,140,000 won out of total amount of loans 6,286,140,000 out of total amount of loans 7,239,00,000) have been cancelled, including each sales contract between Nonparty 1 and Nonparty 1.

9) After that, the Defendant continued to extend each of the instant loans every six months with Seoul Mutual Savings Bank, as seen earlier, and continued to pay the interest on the loan by March 30, 2010.

10) Meanwhile, Nonparty 5, the Defendant’s representative director, testified that “Seoul Mutual Savings Bank requested the extension of maturity as a witness in the instant case No. 2014da502627, May 12, 2014, and requested the extension of maturity to Seoul Mutual Savings Bank, such as the foregoing 5) and the Defendant and the guarantor jointly and severally liable as to the reason that the Defendant and the guarantor would be jointly and severally liable,” and the meaning of the testimony that “Seoul Mutual Savings Bank is all liable regardless of the principal debtor, and that Seoul Mutual Savings Bank sent such public document because it was intended to extend maturity on the condition that it is responsible for the exercise of the City and the Corporation.”

[Basis] Facts without dispute; Gap evidence 6 through 8; Gap evidence 10, 15, 16; Eul evidence 2-1 through 6; Eul evidence 3; Eul evidence 8-1 through 3; Eul evidence 8-1 through 13; Eul evidence 10-13; the purport of the whole pleadings;

C. Determination

1) The starting point for the statute of limitations

According to the above facts, each of the loans in this case was made at the maturity of August 13, 2005 or September 1, 2005 when one year has passed from the date of the first loan. The defendant and the non-party 1 agreed to extend each of the loans in this case on or before April 17, 2007 when the contract for the sale in this case was cancelled by agreement, it can be deemed that the non-party 1, the principal debtor, consented to the extension of the loan period by the agreement between the defendant and the Seoul Mutual Savings Bank. However, there is no evidence to deem that the extension of the loan period after the above period was effective as to the non-party 1, the principal debtor, and that the defendant and the non-party 1 agreed to the extension of the loan period by the agreement between the defendant and the Seoul Mutual Savings Bank, or that the right of representation was granted to the defendant about the extension of the loan period. Accordingly, it is reasonable to deem that the extension of the loan period after the above period was effective as to the principal debtor, and the initial date of each of the loan in this case on August 13, 2007.

Therefore, barring special circumstances, Nonparty 1’s respective loan obligations of this case, the primary debtor, was extinguished by prescription prior to the application for the payment order of this case, after five years from August 13, 2007 or from September 1, 2007, which was the commercial extinctive prescription period.

2) Whether to interrupt extinctive prescription

According to the above facts, since the defendant agreed to bear the interest rate on intermediate payment loans in entering into each of the instant sales contracts with the non-party 1, 2, and 3 by the date designated by the defendant later, the defendant can be deemed to have taken over the repayment of each of the instant loans and obligations from the principal debtor to the Seoul Mutual Savings Bank. However, as long as each of the instant sales contracts, including the performance acceptance agreement, was rescinded by the defendant and the non-party 1 on June 2006, it is reasonable to view that the above performance acceptance agreement was retroactively invalidated or invalidated retroactively with each of the instant sales contracts, as well as the instant sales contracts.

Therefore, according to the Plaintiff’s assertion, even if there is room to view the Defendant’s payment of interest on each of the instant loans to Seoul Mutual Savings Bank as its principal debtor’s debt approval, the Defendant’s payment of the interest on each of the instant loans to Seoul Mutual Savings Bank as its principal debtor, at least after April 17, 2007, even if the Defendant paid each of the instant interest on each of the instant loans to Seoul Mutual Savings Bank after the cancellation of each of the instant sales contract, it does not constitute an approval of Nonparty 1’s debt, the principal debtor, and even if the sales contract was cancelled, each of the instant loans obligations of this case, even if calculated from the time when the sales contract was cancelled, shall be deemed to have expired after the lapse of five

Meanwhile, the Plaintiff asserted that the Defendant concurrently acquired each of the instant loan obligations from Nonparty 1, or was delegated with the management authority for the instant loan obligations. However, the Defendant agreed to pay liability for the extension of the due date for each of the instant loan obligations with Seoul Mutual Savings Bank, or to assume the responsibility for each of the instant loan obligations upon the cancellation of each of the instant sales contracts with Nonparty 1, while cancelling each of the instant loan obligations with Nonparty 1, it is difficult to deem that the Defendant concurrently assumed each of the instant loan obligations from Nonparty 1, or that the Defendant was delegated with all the management authority including the approval authority for the instant loan obligations, and there is no other evidence to acknowledge otherwise, the Plaintiff’s assertion on this part is without merit.

3) Whether the guaranteed obligation is subordinate to the guaranteed obligation

Even if the extinctive prescription of a guaranteed obligation is not completed due to such reasons as suspending the extinctive prescription of the principal obligation, if the extinctive prescription of the principal obligation is completed due to the fact that the principal obligation is extinguished as a matter of course by the completion of the extinctive prescription, the guaranteed obligation is also extinguished as a matter of course, and even if the guarantor performed or approved the guaranteed obligation upon the expiration of the extinctive prescription of the principal obligation, it shall not be deemed that the waiver of the extinctive prescription of the principal obligation by the act of the guarantor, other than the principal obligor, has an effect on the waiver of the principal obligation (see, e.g., Supreme Court Decision 2011Da78606, Jan. 12, 2012). However, it is reasonable to deem that the guarantor cannot assert the extinction of the guaranteed obligation on the ground of the lapse of the prescription of the principal obligation, in exceptional circumstances where he/she expressed his/her intent to perform the guaranteed obligation despite the expiration of the prescription of the principal obligation (see Supreme Court Decision

As seen earlier, each of the loan obligations of Nonparty 1, the primary debtor, has already been completed prior to the application for the payment order of this case. However, under the loan agreement of this case, the Defendant agreed to extend each of the loan obligations of this case at will with Seoul Mutual Savings Bank without the consent of the primary debtor and agreed to assume liability regardless of the primary debtor. ② The extension of the loan period is directly connected with the issue of the extinctive prescription of each of the loan obligations of this case, and the extension of the loan period becomes directly related to the issue of the principal debtor's request, and thus, the extinctive prescription of the principal obligation becomes complete despite the extension of the loan period between the Defendant and Seoul Mutual Savings Bank. ③ The Defendant cancelled the loan contract with Nonparty 1 on the condition that the principal debtor is liable for each of the loan obligations of this case. Furthermore, according to the loan agreement of this case, each of the above loan obligations of this case was cancelled, and the Defendant did not have to take all of the above measures to discharge the loan obligations of this case without the consent of each of the principal debtor in Seoul on the loan of this case.

Since the plaintiff's second defense pointing this out is with merit, the defendant's defense of extinction of obligation is without merit.

3. Conclusion

Therefore, the plaintiff's claim against the defendant shall be accepted with merit, and since the part against the defendant among the judgment of the court of first instance is justified with its conclusion, the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Lee Jin-chul (Presiding Judge)