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

The defendant shall pay to the plaintiff 59,336,74 won with 5% interest per annum from April 20, 1993 to the service date of the original copy of the payment order of this case, and 20% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The judgment of the first instance is revoked. The plaintiff's claim is dismissed.

The following facts may be acknowledged, either in dispute between the parties or in combination with the whole purport of the pleadings, or in each entry in Gap 1, 2, 4, 5, 6, 5, 3-1, 3-2:

A. At the time of March 8, 1990, between the Nonparty, who operated ○○○○, and the Nonparty and the Korea Corporate Lease Co., Ltd. (hereinafter “Korean Corporate Lease”), concluded a facility lease agreement (hereinafter “instant lease agreement”) with respect to the mid-term period (registration number omitted), the Plaintiff and the Defendant jointly and severally guaranteed the Nonparty, a lessee, to secure the damages of the Korean Corporate Lease due to nonperformance of contractual obligations under the said lease agreement.

B. However, the non-party's failure to perform the obligation under the above lease agreement and urged the plaintiff, etc., a joint guarantor, to pay the guaranteed obligation. The plaintiff, until April 19, 193, paid the total amount of 118,673,549 won of the principal and interest on the debt under the lease agreement of this case as of April 19, 1993 to the Korean corporate lease, and on the same day, the mortgage, which amounted to 125,00,000 won, was acquired from the Korean corporate lease, and the mortgage right holder was registered under the name of the plaintiff on June 7, 1993.

2. Determination on the cause of the claim

According to the above facts, the defendant is obligated to pay to the plaintiff damages for delay at each rate of 59,336,774 won (1/2 of the amount paid by the plaintiff) corresponding to the defendant's share of the joint and several liability obligation among the amount paid by the plaintiff to Korean corporate leasing due to the performance of the joint and several liability obligation, and as requested by the plaintiff, from April 20, 1993 to March 19, 2008, it is obvious that the delivery date of the original copy of the payment order of this case is the date of delivery of the original copy of the payment order of this case, and 5% per annum from the next day to the day of full payment, as stipulated by the Civil Act, to the plaintiff.

3. Judgment on the defendant's assertion

A. As to the claim for discharge

1) The defendant asserts that, in relation to the lease contract of this case, the plaintiff paid the principal and interest of the debt to Korean corporate lessee until April 19, 193, and acquired the right as a security right to the mid-term, which is a leased object, the mortgage was not immediately performed, and the value of the mid-term security is almost extinguished due to the negligence that did not properly manage the mid-term, and the defendant, who is a joint guarantor of the lease of this case, could not exercise the plaintiff's mortgage on the mid-term, by legal subrogation. Thus, the defendant cannot exercise the plaintiff's right to the mid-term, by extinguishing the value of the security as above, the defendant cannot exercise the plaintiff's right to the mid-term, so pursuant to Article 485 of the Civil Act, the defendant shall be exempted from the obligation to the extent that it can not be repaid due to the plaintiff's loss of

2) A person who subrogated to a creditor may exercise the right to claim and security interest of the creditor within the scope of his/her own right (i.e., the extent exceeding his/her own share). Thus, in cases where a creditor does not lose or reduce his/her security right due to his/her failure to preserve the creditor’s security, the scope of exemption is limited to the amount (i.e., the extent exceeding his/her own share) which the statutory subrogation right holder is entitled to receive by exercising the subrogation right under Article 482(1) of the Civil Act. Meanwhile, the joint and several obligors are entitled to exercise the subrogation right in proportion to his/her share of the joint and several obligors, barring any special agreement among the joint and several obligors, and other special circumstances, it is presumed that the aforementioned share of the joint and several obligors is equal. Therefore, in order for one of the joint and several obligors to repay his/her obligation and exercise the right to demand reimbursement to other joint and several guarantors, he/she shall be paid in excess of his/her share of the joint and several obligors.

3) The fact that the plaintiff, one of the joint and several sureties, paid all the principal and interest of the debt under the lease agreement of this case to Korean corporate leasing, as seen earlier. Even if the defendant, who is another joint and several sureties, has already repaid his debt, he cannot exercise the right of indemnity against the plaintiff who has already repaid his debt exceeding the part of his own share. Therefore, even if the plaintiff extinguished the value of the security of the period as the defendant's assertion, the defendant does not have any "unrepaid amount". Further, the defendant is exempted from the liability of guarantee to the extent of the amount that he could have received a dividend by exercising a mortgage established during the period as a legal subrogation (see Supreme Court Decision 96Da3574 delivered on December 6, 196, etc.). Since the plaintiff paid all the principal and interest of the debt under the lease agreement of this case to Korean corporate leasing, even if the defendant was able to receive a dividend in the procedure of the claim of the above defendant.

B. As to the statute of limitations defense

1) In addition, the defendant defense that the plaintiff's claim for indemnity has expired, so it is clear in the record that the plaintiff could exercise the right to indemnity immediately after paying the principal and interest on the debt under the lease contract of this case to Korean corporate lease. Thus, the due date for payment of the above claim for indemnity was April 19, 1993, and the plaintiff applied for the payment order of this case on March 12, 2008 after the ten years have passed since the payment was made by subrogation. However, in full view of the above evidence, in light of the whole purport of the arguments, it is evident in the record that the plaintiff applied for the payment order of this case on March 12, 2008.

2) In other words, the defendant asserts that the provisional attachment registration was cancelled due to the plaintiff's failure to file a lawsuit on the merits of 10 years after the execution of the provisional attachment, and that the interruption of prescription has no effect pursuant to Article 175 of the Civil Act. Thus, in addition to the whole purport of the pleadings, the defendant filed an objection against the provisional attachment order as a result of the defendant's filing of an objection, on May 15, 2008, on the ground that the above provisional attachment registration was completed on May 13, 1993, and the plaintiff, who is the creditor, did not bring an action on the merits for 10 years from the time the above provisional attachment registration was revoked (this Court Decision 2008Kahap167, this Court), and on June 24, 2008, the provisional attachment registration was cancelled on the ground that it did not constitute the cancellation of prescription under Article 706 (2) 20 years prior to the whole amendment by Act No. 626, Jan. 26, 2002).

4. Conclusion

Therefore, the plaintiff's claim of this case shall be accepted on the grounds of its reasoning, and the judgment of the court of first instance is just in conclusion, and the defendant's appeal is dismissed as it is without merit, and it is so decided as per Disposition.

Judges Choi Sung-sung (Presiding Judge) Kim Jong-young