[2] The case denying the establishment of a contract of guarantee with an expression agent under Article 125 of the Civil Code, in a case where the principal obligor, who was in possession of Gap's seal and certificate of taxation for guarantee, had expressed his intention of guarantee to the obligee in the process of negotiating the guarantee contract with the obligee upon the obligee's request without knowing the principal obligor's knowledge of the principal obligation, committed a contract of guarantee with the obligee on behalf of Gap at his own discretion

[2] The case denying the establishment of an expression agency under Article 125 of the Civil Code on the ground that the obligee was negligent in failing to know the existence of the power of representation of the principal obligor, even if the principal obligor, who was in possession of Gap's seal and certificate of taxation for guarantee, voluntarily subrogated to the obligee Gap, in the course of negotiating whether to conclude a guarantee agreement with the obligee upon the obligee's request of the principal obligor without knowledge of the principal obligor.

1. According to the reasoning of the judgment below, the court below revoked the Nonparty’s intention of guarantee upon the request of the Nonparty’s joint and several sureties’s joint and several sureties’s request that the Defendant live in the same village, and accepted it on May 4, 1997, and the Defendant expressed his intention of guarantee in the presence of the Plaintiff, etc. on May 4, 1997. The Defendant, on May 6, 1997, issued a certificate of imposition of global income tax on the Defendant, which was indicated as the guarantee, on his seal, who moved to the Nonparty’s house, with his seal affixed to the Non-Party, with the Non-Party’s main obligation more than KRW 100 million as a result of a specific inquiry of the principal obligation, and the Nonparty’s agent’s withdrawal of the guarantee contract on behalf of the Non-Party’s agent. The court below found it difficult for the Plaintiff to have concluded the guarantee contract on behalf of the Non-Party, on the following day.

2. However, it is difficult to accept the judgment below for the following reasons that the court below did not err by failing to know that the defendant did not have any authority to represent the non-party, while promptly concluding that the defendant expressed his/her intent to guarantee the non-party's debt of the loan to the plaintiff in the process of concluding a joint and several guarantee contract.

The existence of the guarantor's intent to guarantee is a matter of interpretation of the parties' intent and fact-finding to be determined by comprehensively considering the motive and background of the parties' involvement in the transaction, the form and contents of the involvement, the purpose of the transaction, the transaction practices, etc., and the existence of the guarantor's intent to guarantee is to be determined. However, the existence of the guarantor's intent to guarantee is to be strictly limited in special circumstances where the parties bear it (see Supreme Court Decision 98Da39923, Dec. 8, 1998).

In light of the records, the non-party paid Swelves as of December 1996. After the non-party paid Swelves as of December 1996, the non-party was in the state of being in bankruptcy when the plaintiff presented a per share sheet of KRW 150 million per face value possessed by him on or around April 1997 (record 168 pages). The non-party requested the plaintiff to have a guarantor in the process of recovering the above default checks from the plaintiff and the non-party refused to request the plaintiff to submit a certificate of property tax (record 185 pages) and the non-party demanded the plaintiff to submit a certificate of property tax (record 185 pages). The non-party expressed his intention to guarantee the non-party's principal obligation without knowledge of the non-party's principal obligation in the process of negotiating whether to conclude the guarantee contract with the non-party at the request of the non-party. The non-party, who was issued a certificate of local tax tax tax item for concluding the guarantee contract, was trying to conclude the guarantee contract.

In the same way, the fact that the Plaintiff and the Defendant expressed their intent to conclude a guarantee agreement in the course of negotiations on the guarantee agreement for the Nonparty on the part of the Nonparty cannot be deemed as a conclusive expression on the Plaintiff’s intent to conclude a guarantee agreement. Therefore, it cannot be concluded that the Defendant, with such speech and behavior, expressed the Nonparty the right to represent the Nonparty in concluding a guarantee agreement for the Nonparty.

In addition, as in the judgment of the court below, even if there is room to view that the defendant merely made the above speech and behavior of the defendant in the course of negotiations for the conclusion of guarantee contract between the defendant and the plaintiff and the non-party as the expression agency under Article 125 of the Civil Code, in order to constitute the expression agency under Article 125 of the Civil Code, the other party must be bona fide and without fault, and if there is any negligence on the other party, the expression agency by the presentation of the power of representation cannot be asserted (see Supreme Court Decision 84Meu10

In this case, according to the facts and records established by the court below, at the time of the conclusion of the above guarantee contract, the non-party only possessed the seal impression of the defendant, not the seal impression of the defendant, and did not have the certificate of the personal seal impression that is indicated for the purpose of guarantee, and did not have the power of attorney or the certificate of the personal seal impression that can confirm the defendant's intention of guarantee in general transactions. In addition, obtaining profits under the above guarantee contract is the non-party who is the guarantor. In this case, the non-party who is the agent can be deemed to have the defendant's right of attorney for his own interest. In this case, the non-party is likely to have the defendant's right of attorney for his own interest, and the contents of the above joint and several guarantee are also to pay the non-party's debt amounting to 100 million won or more which the non-party has already been subject to criminal punishment in lieu of the return of the default check, and the non-party's demand for joint and several guarantee in lieu of the plaintiff's request is unreasonable, so the plaintiff's obligation to directly or not to obtain the defendant's personal seal certificate.

If there are circumstances, the plaintiff who intends to enter into a guarantee agreement with the defendant could have easily known that if he/she had received a certificate of personal seal impression from the defendant to verify his/her intention of guarantee, or confirmed the existence of the non-party's right to representation by telephone, etc., he/she did not have the right to representation to enter into a guarantee agreement on behalf of the defendant. However, even if he/she neglected to do so, the expression representation under Article 125 of the Civil Act cannot be

Nevertheless, the court below's decision that the defendant had not been negligent in not knowing that the plaintiff did not have the right of representation of the non-party to the plaintiff was not attributable to the plaintiff shall be deemed to have affected the conclusion of the judgment by misunderstanding the legal principles as to the expression representation in Article 125 of the Civil Code or by misunderstanding the legal principles as to the expression representation in the process of the formation of the guarantee contract.

3. Therefore, the lower judgment is reversed, and the case is remanded to the lower court. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Seo Sung-sung (Presiding Justice)