2. B

1. The lower court determined that the Defendants jointly and severally liable to the Plaintiff for the debt amount of KRW 67,537,237 as to the Plaintiff’s assertion on the cause of the Plaintiff’s claim, and that the Defendants were jointly and severally liable for the debt amount of KRW 37,00 and delayed payment thereof. On the other hand, the lower court determined that: (a) on June 21, 2012, the Plaintiff, upon the Plaintiff’s request, was able to report the damage caused by the long-term attempted payment of the goods by the Defendant Company; (b) on behalf of the Defendant Company C (hereinafter “C”); (c) on the part of the Plaintiff’s claim against the Defendant Company C, the Plaintiff, who was jointly and severally liable to the Plaintiff; and (d) on the part of the Plaintiff’s claim against the Defendant Company C, the lower court did not request the Plaintiff to pay the remainder of the debt amount of KRW 20,000,000, 300, 300, 200, 301.

2. However, it is difficult to accept the above determination by the court below for the following reasons.

A. The burden of proving that the assumption of an obligation is overlapping is a matter of interpretation of the intent of the parties indicated in the assumption of an obligation agreement, and is deemed to have taken over the obligation overlappingly, if it is not clear whether the obligation is discharged or the overlapping underwriter is acquired (see, e.g., Supreme Court Decisions 201Da76099, Jan. 12, 2012; 2002Da36228, Sept. 24, 2002). The burden of proving that there are special circumstances to be deemed as the assumption of an obligation with the discharge of obligation lies in the assertion of the obligation (see, e.g., Supreme Court Decision 2001Da81948, Jul. 12, 2002). The waiver (or exemption of an obligation) of a claim is not necessarily required to be made only by the express declaration of intent, but also if it can be deemed as a waiver of the obligation by interpretation of a creditor’s act or declaration of intent, etc., the act should be determined to be 15001 through strict.

B. In the following point, it is difficult to deem that the Plaintiff consented to the Defendant’s assumption of an obligation with the discharge of obligation, or exempted the Defendants from the Defendants’ obligation to pay for the goods.

① As the Plaintiff, a creditor, demanded that the Defendant Company C, the debtor of the Defendant Company, pay the Defendant Company’s debt on behalf of the Plaintiff, the Defendant Company, upon the Plaintiff’s request, prepared a written statement of direct payment, and C’s consent only constitutes a third party’s offer of debt assumption and the consent thereof, and the process cannot be seen as revealing that the said process is the burden of debt assumption.

② In addition, even if the Plaintiff received the instant notarial deed from C after the Plaintiff and Defendant Company consented to a direct non-performance request, it is merely an exercise of the obligee’s right against the obligee’s assignee.

③ After formulating a written statement of non-performance, it is difficult to deem that the Defendant Company renounced the claim for partial construction payment against C solely on the ground that C transferred the claim to the Defendant Company only for the remainder of the amount excluding the amount that C would directly pay to the Plaintiff, out of the amount of construction payment owed to the Defendant Company C. Even if the Defendant Company renounced the above claim, it is difficult to see that the Plaintiff was aware of such fact solely on the grounds that the lower court determined. Even if the Plaintiff was aware, the waiver of the claim against the Defendant Company C

C. Rather, according to the reasoning of the lower judgment and the record, the Defendant Company received steel from the Plaintiff and worked the steel at the construction site that it contracted to the Defendant Company, but did not receive the payment of the price. The Defendant Company paid KRW 60,698,038 out of the amount of the price of the goods to the Plaintiff even though it was not paid the price of the goods by the Defendant Company, and thereafter, the Defendant Company prepared a repayment plan to the Plaintiff under the joint and several guarantee of the Defendant Company B to pay the remaining amount of KRW 73,537,237 out of the amount of the goods remaining until June 18, 2012. Since the Plaintiff was unable to pay the price of the goods to the Defendant Company, the Defendant Company also requested the Defendant Company to prepare a written statement of non-payment in favor of the Plaintiff. According to the above facts, it can be acknowledged that the Defendant Company failed to pay the price of the goods to the extent sufficient enough to enable the Plaintiff to pay the price of the goods regardless of the payment of the price of the goods.

D. Nevertheless, the court below, based on its stated reasoning, concluded that the plaintiff implicitly exempted the defendants from the defendants' obligation to pay the goods or approved C's assumption of obligation with the discharge of obligation. In this case, the court below erred by misapprehending the legal principles on the acceptance of the assumption of obligation with the discharge of obligation and the discharge of obligation, which affected the conclusion of the judgment. The ground of appeal pointing this out has merit.

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

Justices Lee Sang-hoon

Justices Cho Jong-hee

Chief Justice Park Sang-ok