[2] The case holding that the terms and conditions of the credit guarantee fund which requires the execution of the first loan within 60 days from the date of issuance of a credit guarantee certificate to establish the credit guarantee relationship for the loan of an automatic passbook loan method are null and void

[2] The case holding that the terms and conditions of the credit guarantee fund's terms and conditions which require the performance of the first installment loan within 60 days from the date of issuance of a credit guarantee certificate for the establishment of credit guarantee relationship for the loan of an automatic passbook loan are unfairly unfavorable to the customer and thus are null and void pursuant to Article 6 (1) and (2) 1 of the Regulation of Standardized Contracts Act as they are unfair and unfair against the principle of trust and good faith

1. The terms and conditions are unilaterally prepared by an enterpriser to enter into a contract with a large number of customers, and they are contents of a contract without a customer having a sufficient opportunity to review or confirm the contents of the terms and conditions. Thus, even if the contents of the terms and conditions belong to the area of private autonomy, the terms and conditions that the enterpriser transfers the risks to the customer without reasonable grounds should be deemed null and void in light of the customer's legitimate interests and reasonable expectations, and goes beyond the limits of private autonomy (see Supreme Court Decision 2003Du3734, Feb. 18, 2005, etc.).

With respect to the establishment of a credit guarantee relationship, in the case of a limited transaction loan (including loan operation method similar thereto), the terms and conditions of the contract of this case are established only when one or more separate loans are implemented in compliance with the credit guarantee conditions within 60 days from the date of issuance of a credit guarantee certificate, and the defendant is liable for guarantee only for a separate loan executed in compliance with the credit guarantee conditions (hereinafter referred to as the "limited transaction terms and conditions of this case") within the period of guarantee (Article 2; hereinafter referred to as the "limit transaction loan of this case"). The term "limit transaction loan" here refers to a loan generated and terminated from the same subject of loan to the same subject for continuous financial transactions between the creditor and the debtor, the whole "credit loan" refers to individual loans constituting the limit transaction loan, and the "execution of loan" refers to the payment of loans (including bank payment) under a loan agreement (Article 1). In the case of a loan operation method similar thereto, the defendant requires a separate execution of loan to establish a credit guarantee relationship.

The lower court determined that the terms and conditions of the contract of this case, which excludes or limits the guarantor's liability without reasonable grounds, or do not constitute an unreasonably unfavorable provision to the customer.

2. However, in light of the above legal principles, we cannot agree with the judgment of the court below for the following reasons.

A. The defendant is a corporation established for the purpose of contributing to the smooth development of the national economy by guaranteeing the debt of an enterprise which lacks security solvency (Article 1 of the Credit Guarantee Fund Act). One of the measures to achieve the purpose of its establishment, where it issues a credit guarantee for an enterprise which requires funds through a certain examination and applies for a loan by a financial institution which lacks security capability, so that it can depend only on the credit guarantee form and implement a loan to the enterprise without any separate request for security (Article 23 of the same Act).

B. However, where a financial institution provides credit to the debtor's account within the limits set forth in a loan agreement, the loan automatically takes place only for the portion exceeding the balance when the debtor withdraws the money in excess of the balance and deposits the money in the passbook, and there is no separate submission of loan documents or examination of loan in the execution of the loan. Therefore, the debtor can borrow the money at any time within the limit of the loan at any time due to deposit in the account if there is a surplus for the loan, and it is possible for the financial institution to set up an appropriate fund plan against future demand for the loan, and there is no means for the financial institution to force the debtor to execute the loan by way of the loan structure. Accordingly, if the financial institution concluded a comprehensive account loan agreement with the defendant's belief of the credit guarantee and subsequently becomes unable to take responsibility for the credit guarantee after 60 days from the date of issuance of the credit guarantee certificate, the financial institution is not in conformity with the purpose of the defendant's credit guarantee system to avoid such risk or to avoid such risk as a result of the establishment of an enterprise's credit guarantee.

In addition, the defendant has a duty to fairly and faithfully investigate the management status, business prospects, credit status, etc. of an enterprise intending to provide credit guarantee (Article 27 of the same Act), and collects a fixed guarantee fee according to the guaranteed amount in consideration of the credit rating, type of guarantee, etc. of the enterprise (Article 33 of the same Act and Article 24-2 of the Enforcement Decree of the same Act), so long as the defendant provided credit guarantee through such procedures, it is reasonable to deem that the defendant took over the risks within the scope of the guaranteed amount through the overall assessment of the enterprise (see Supreme Court en banc Decision 2006Da36981, May 23, 2008, etc.). In addition, the credit guarantee for the comprehensive passbook loan constitutes the so-called guarantee for which the guaranteed amount becomes fixed at the time of termination of transactions due to such reasons as set forth by the guarantee agency without supporting the guarantee liability for the increased or decreased principal and interest of the guaranteed amount within the agreed limit during the trading period, and thus, the credit guarantee obligation of the debtor for an unspecified obligation arising from such continuous transaction constitutes a total guarantee period of 200.84.

On the other hand, in relation to a credit guarantee for an automatic passbook loan, if the execution of a loan by case for up to 60 days pursuant to the terms and conditions of the contract in this case is considered to be an essential condition in establishing a credit guarantee relationship, a financial institution which has concluded a comprehensive passbook loan agreement with the defendant trusting the defendant's credit guarantee and signing the comprehensive passbook loan agreement bears the risk of causing unexpected damage to the loss of personal security depending on the external circumstances that the first loan is obtained by the company. To avoid such damage, it is clear that a financial institution is only a method to suspend the comprehensive passbook loan agreement if there is no execution after investigating whether the first loan was implemented within 60 days from the date of issuance of the credit guarantee certificate. However, it is clear that a financial institution can not take such measures unilaterally, unless there is a special agreement between the financial institution and the debtor that the first loan can suspend the agreement in the initial comprehensive passbook loan agreement, and even if there is such a special agreement, it is evident that taking such measures by ascertaining the date of execution of the first loan.

C. As can be seen, the terms and conditions of the instant contract requiring the execution of a loan by case even if the credit guarantee relationship with respect to a loan by an automatic passbook loan is established, are to exclude the defendant's liability without reasonable grounds and impose unfair obligations on the customer. On February 1, 2007, the defendant also revised the terms and conditions of the credit guarantee relationship if the basic loan agreement is newly concluded within 60 days from the date of notification of the credit guarantee to the effect that the basic loan agreement is established in accordance with the credit guarantee conditions.

D. Ultimately, in a case where the standardized contract of this case is deemed to apply to a credit guarantee relationship for an automatic passbook loan, the standardized contract of this case shall be deemed to be unfairly unfavorable to the customer and thus null and void by Article 6(1) and (2)1 of the Regulation of Standardized Contracts Act because it constitutes a provision which has lost fairness in violation of the principle of good faith. The defendant's assertion that the standardized contract of this case is invalid by misapprehending the legal principles as to the standardized contract of this case as to the loan of this case, which affected the conclusion of the judgment of the court below, is not erroneous in the misapprehension of legal principles as to the standardized contract of this case, as it is alleged in the ground of appeal. < Amended by Presidential Decree No. 17086, Oct. 28, 1994; Presidential Decree No. 2003065, Apr. 22, 2003; Presidential Decree No. 18849, Sep. 28, 2005; Presidential Decree No. 1905, Sep. 305>

3. Therefore, without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Min Il-young (Presiding Justice)