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

The defendant shall serve 14% per annum from January 11, 1997 to February 9, 1997, 197, 18% per annum from February 10, 1997 to January 2, 198, 21% per annum from January 3, 1998 to January 14, 198, 21% per annum from January 15, 198 to July 14, 1998, and 27% per annum from the day after July 15, 198 to the day after January 15, 198, 25% per annum from the day after July 15, 198 to the day after January 29, 198, and 19% per annum from January 16, 198 to the day after the completion of payment. < Amended by Act No. 55374, Nov. 29, 199; Act No. 5537, Nov. 29, 1998>

2. Purport of appeal

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

The following facts are acknowledged in light of the evidence Nos. 1 through 3, evidence Nos. 6 through 10, evidence Nos. 13-1 through 15, evidence Nos. 17-2, evidence Nos. 17-1 through 20-2, evidence Nos. 17-2, evidence Nos. 1 through 4-2, and evidence No. 1 through 4-2, and evidence No. 1 of the first instance court’s testimony of Kim Heavy, and there is no evidence contrary thereto.

A. Codefendant A Electronic Co., Ltd. of the first instance trial (hereinafter referred to as "ASEAN") entered into an annual insurance contract from the date following that of July 11, 1994 to the Information and Communications Promotion Fund from August 13, 1994 to June 15, 199 (hereinafter referred to as the "instant loan") with the Plaintiff on September 1, 1994 to guarantee the obligation to pay the principal and interest of the loan (hereinafter referred to as "the instant loan"), the amount of 986,976,218, and the annual insurance period from the day following that of June 15, 1994 to the 198.19% from the day following that of June 15, 199 to the 198.19% annual insurance period, and the Plaintiff’s repayment damages from the day following the date of payment to the 198.19% annual interest rate from the 198% following that of June 198, 199.

B. On July 28, 1994, the Defendant, as a non-party 1's non-party 1's private partner, was working as a business director of the ASEAN, was in consultation with the Plaintiff on the details of the instant performance guarantee contract (the insurance amount was not determined due to the provision of security at that time) between the ASEAN and the Plaintiff, signed and sealed the Plaintiff company in advance on the column of the joint guarantor of the instant performance guarantee agreement with the purchase amount and the insurance period in the state of disturbance. On September 1, 1994, the amount of the insurance amount became final and conclusive and recognized on September 1, 1994, the instant performance guarantee contract was concluded between ASEAN and the Plaintiff.

C. On January 15, 1995, when the defendant retired from the ASEAN, he demanded the plaintiff and the ASEAN to escape from the responsibility as a joint and several surety under the contract for performance guarantee of this case. The plaintiff notified the defendant that the ASEAN may replace the joint and several surety if the ASEAN adds a third party as a joint and several surety. On May 16, 1995, the ASEAN applied for the change of the joint and several surety who requested the plaintiff to change the joint and several surety under the contract for performance guarantee of this case from the defendant to the non-party 2. On June 24, 1995, the plaintiff notified the ASEAN Electronic and the defendant that he approved the replacement of the joint and several surety as above.

D. However, the Plaintiff did not take any follow-up measures for replacement of a joint and several surety, such as concluding a new joint and several surety contract with the Plaintiff. Around February 1996, the Plaintiff notified on Non-Party 2 of Non-Party 1’s failure to take follow-up measures following the replacement of a joint and several surety and Non-Party 2’s default on October 17, 1995.

E. Meanwhile, the Plaintiff did not perform the obligation to return the principal and interest of the instant loan. On January 10, 1997, the Plaintiff subrogated for KRW 895,463,381 to the Korea Comprehensive Technology Finance Corporation, and on January 10, 1997, the amount of KRW 368,169,925,925, and January 24, 1997, collected KRW 519,951,956 (=363,381 - 368,169,925 - 7,341,500 - 7,3422 won (=7,341,500 x 500 x 14,500 x 1436 days).

2. Determination

A. Whether a joint and several guarantee contract is concluded

In light of the following, although the Defendant signed and sealed the amount of the insurance coverage, insurance period, etc. of the instant performance guarantee contract at the time of signing and sealing on the joint guarantor column of the instant performance guarantee contract, the relationship between the Defendant and the son, the amount and period of the loan of this case at the time of signing and sealing, and the instant performance guarantee contract was concluded to guarantee the principal and interest of the instant loan, and the overall outline of the instant performance guarantee contract was settled at the time of signing and sealing on the detailed contents, it is reasonable to view that the Defendant signed and sealed the instant performance guarantee contract with the intent to hold the Plaintiff liable as a joint and several surety if determined within the scope of the loan of this case, the amount of the loan of this case, the amount of the insurance coverage of the instant performance guarantee contract within the scope of the loan, the amount of the insurance coverage of the instant performance guarantee contract, the amount of the insurance coverage, etc., and the Defendant concluded the performance guarantee contract of this case by setting the amount of insurance coverage within the said scope, and thus, the Defendant guaranteed the Plaintiff’s joint and several surety.

(b) Defenses to extinguish liability following the replacement of joint and several sureties;

In this regard, the defendant asserts that since the plaintiff approved the request for replacement as joint and several sureties of the ASEAN, the defendant finally exempted the responsibility for joint and several sureties.

In light of this case, it is reasonable to see that the plaintiff, a financial institution, exempt the obligations of the existing joint and several sureties before setting up a new joint and several sureties without any special circumstances. In light of this case, the plaintiff's approval on the request for replacement of the previous joint and several sureties is not for the plaintiff first to exempt the defendant's obligations of the existing joint and several sureties before entering into a joint and several sureties contract with the non-party 2, and then the new joint and several sureties is not for the plaintiff to enter into a joint and several sureties contract with the non-party 2. It is reasonable to view that the plaintiff terminated the joint and several sureties contract with the defendant or exempted the defendant from the defendant's obligations of the joint and several sureties (see Supreme Court Decision 95Da5428 delivered on March 8, 196). Since there is no evidence to support that the new joint and several sureties contract between the plaintiff and the non-party

In addition, although the plaintiff notified that he/she approved the replacement of a joint and several surety, the defendant notified that he/she would cancel the replacement of a joint and several surety for reasons of the plaintiff's failure to take follow-up measures and the non-party 2's default, and to ask the defendant for the joint and several surety liability violates the principle of trust and good faith and the non-party 2. However, in this case where the new joint and several surety contract has not been concluded between the plaintiff and the non-party 2, taking responsibility for the joint and several surety liability

3. Conclusion

Therefore, the defendant, as a joint and several surety, has a joint and several liability to pay to the plaintiff 519,91,378 won in total (=519,951,956 won + 39,422 won in subrogation) and 519,951,956 won in subrogation, 14% per annum from January 11, 1997 to 30 days following the date of subrogation, 197; 18% per annum from February 10, 1997 to January 2, 1998; 21% per annum from January 3, 198 to January 14, 198 to 198; and 19% per annum from January 14, 198 to 20% per annum from January 14, 1998 to July 14, 198.

Judges Lee Jong-young (Presiding Judge)