[구상금 ][하집1998-2, 274]
Where a guarantee insurance company has agreed to apply the overdue interest rate set by the guarantee insurance company within the maximum of the overdue interest rate set by the guarantee insurance company with respect to the delayed interest rate of the general loan interest rate of a commercial bank as a joint and several guarantee liability for the guarantee insurance company of the principal debtor, the case holding that it is reasonable to interpret the purport that the guarantee insurance company has agreed to apply the overdue interest rate to the guarantee insurance company in consideration of the general loan interest rate of a commercial bank
The case affirming the purport of interpreting the interest rate for delay damages under the above agreement as a general guarantee insurance company within the scope of the maximum interest rate under Article 1 (1) of the Act on the Restriction of Interest and the Interest Limitation at the time when the contract for joint and several liability is concluded (amended by Presidential Decree No. 11280 of December 16, 1983) where the guarantee insurance company agreed to pay the overdue interest rate determined by the guarantee insurance company within the scope of the maximum interest rate for the period exceeding 30 days from the date of the payment of insurance money as joint and several liability for the indemnity liability to the guarantee insurance company of the principal debtor, and the agreement is null and void, and Article 5 of the Regulation of Standardized Contracts Act provides that the agreement shall be interpreted fairly in accordance with the principle of trust and good faith, and where the purport of the terms is unclear, it shall be interpreted in favor of the customer, and the agreement is uniformly printed in the form of a general transaction agreement with the financial institution, etc., and comprehensively takes into account the parties' intent on delay damages under the above agreement into account the general guarantee insurance company's interest rate within 25%.
Article 1 of the former Interest Limitation Act (repealed by Act No. 5507, Jan. 13, 1998); Article 1 (1) of the Interest Limitation Act; Article 5 of the Regulation of Standardized Contracts Act
Korea Guarantee Insurance Co., Ltd. (Attorney Hong-chul et al., Counsel for the defendant-appellant)
Original Literature (Attorney Sung-sung, Counsel for the defendant-appellant)
1. The defendant shall pay to the plaintiff 136,634,083 won with 21% per annum from January 7, 1998 to January 14, 1998; and 25% per annum from the next day to the date of full payment.
2. The plaintiff's remaining claims are dismissed.
3. The costs of lawsuit shall be borne by the defendant.
4. Paragraph 1 can be provisionally executed.
The judgment of the court below that the defendant shall pay to the plaintiff 124,52,712 won with 21% per annum from January 7, 1998 to January 14, 1998, and 27% per annum from the next day to the day of full payment.
1. Facts of recognition;
The following facts do not conflict between the parties, or can be acknowledged in full view of the whole purport of the pleadings in the testimony of Gap evidence 1, 2, 3, 4-1, 2, 5-9, 10-1, 2, 11, 12-1, 2, 13, 14, and 15, 12-2, Gap evidence 12-2, 13, 14, and 15, 15, and Kim Jong-chul.
(a) Conclusion, etc. of a lease insurance contract;
(1) On December 16, 1996, the non-party Daedo Construction Co., Ltd. (hereinafter referred to as the "Largedo Construction") entered into a lease guarantee insurance contract with the plaintiff company for the above Korea Development Lease, the insurance amount of KRW 144,90,000, the insurance amount of the insured amount of KRW 144,90,000, and the insurance period of the lease insurance amount of KRW 3 years from the date of issuance of the lease certificate with the non-party Korea Development Lease Co., Ltd. (hereinafter referred to as the "Korea Development Lease").
(2) On the other hand, on December 12, 1996, the defendant presented the above lease insurance subscription form (Evidence No. 1) and the lease insurance agreement (Evidence No. 2) from the non-party Kim Jong-il, who is an employee of the plaintiff company, and heard the explanation of the above (Evidence No. 1) and the above (Evidence No. 2). On the other hand, by signing and sealing the above lease insurance agreement, it jointly and severally guaranteed the obligation of the plaintiff company with respect to the above lease insurance contract.
(b)Agreement on damages for delay;
(1) As regards the above lease guarantee insurance agreement (Evidence A(2)),
(A) In the event that the above substitute land did not perform the obligation or obligation owed by the Plaintiff Company and the Plaintiff Company paid the insurance proceeds to the insured, the Defendant, the guarantor, shall immediately pay the insurance proceeds and the damages for delay, but the damages for delay shall apply the overdue interest rate of 14% per annum from the day following the date of payment of the insurance proceeds to the 30th day from the date of payment of the insurance proceeds, and with respect to the period exceeding 30 days, the overdue interest rate set by the Plaintiff Company within the maximum overdue interest rate (Article 3(1) and (3))
(B) In addition to the above damages for delay, the Defendant, the guarantor, shall immediately reimburse the litigation costs incurred by the Plaintiff Company in relation to the collection of claims such as the above payment insurance proceeds, the preservation of claims, and the expenses incurred in the execution of claims (Article 2
(C) If the Plaintiff Company’s exercise of security rights or collection of claims and the full repayment amount of the principal or the guarantor’s obligation under Article 3 is insufficient to extinguish the obligation under the above Article, then the Plaintiff Company does not raise any objection thereto even with respect to such appropriation in the order and method recognized as being reasonable by the Company (Article 9).
(2) The overdue interest rate under the above agreement is 14% per annum from the day after June 27, 1997, which was 30 days from the day after the payment date of insurance money of the Plaintiff company, until July 27, 1997, 18% per annum from that day to January 2, 1998, 21% per annum from that day to that of January 14, 1998, and 27% per annum from that day to the day after the closing date of the argument of this case. The Plaintiff Company spent 3,545,550 won per annum from May 9, 1997 to December 27, 197 with regard to the collection of the insurance money of this case as follows.
(c) Payment of insurance money;
However, as the above Daedo-do-si did not pay the rent for the lease under the above lease contract to the above Korea Development Lease, the above Korea Development Lease claimed against the plaintiff company for the payment of the guaranteed insurance money under the above lease insurance contract, and the plaintiff company paid the above Korea Development Lease KRW 131,07,162 on June 27, 1997.
D. Meanwhile, on January 6, 1998, the Plaintiff Company received reimbursement of KRW 10,000,000 from Nonparty 2 Young-gu Co., Ltd., one of the joint and several suretys for the obligation owed to the Plaintiff Company in connection with the lease insurance contract.
2. Determination:
(a) The amount of the indemnity payable by the defendant;
First, it is based on January 6, 1998 on the amount of reimbursement that the above Taedok has to pay to the Plaintiff Company the above amount of KRW 10,000,000,000, and until that time, it is considered that the Defendant has to pay to the Plaintiff Company.
(1) A. (A.) Principal of the insurance proceeds -131,007,162
(b)Until July 27, 1997, past 30 days from June 28, 1997, the day following the above payment date, as sought by the Plaintiff Company, 1,507,479 won (131,07, 162 x 0.14 x 30/365).
From the next day to January 2, 1998, 159 days;
gold: 10,272,397 won (131,007,162 x 0.18 x 159/365)
The 4th day from the next day to January 6, 1998, which is the above reference date.
gold: 301,495 won (131,07,162 x 0.21 x 4/365)
Total amount of 12,081,371
(C) With respect to the collection of the instant insurance money, KRW 3,545,550,00,000 paid by the Plaintiff Company from May 9, 1997 to December 27, 199.
(2) Making up for the amount of KRW 10,000,000.
The above 10,000,000 won shall be first appropriated for 3,54,55,50 won (10,000,000-3,545,550 won (10,000,550) paid by the Plaintiff Company from May 9, 1997 to December 27, 197, as stipulated by the Plaintiff Company, in relation to the collection of the insurance proceeds of this case, and the remainder of the 6,454,450 won (10,52,712 won (131,07,626,454,455,50) shall be appropriated for the principal amount of the insurance proceeds. Thus, the remainder of the above 124,52,712 won (131,07,626,454,450) shall be appropriated for the principal amount of the insurance proceeds.
B. Determination as to a claim for damages for delay at the rate of 27% per annum from January 15, 1998 to the date of full payment
As of January 15, 1998, the Plaintiff Company sought the payment of damages for delay in accordance with the above ratio from the same day to the date of full payment on the ground that the overdue interest rate under the instant agreement was changed to 27% per annum.
In light of the above, Article 3 (1) and (3) of the above Lease Insurance Agreement entered into between the plaintiff company and the defendant, the defendant, the guarantor, shall immediately repay the insurance proceeds paid by the plaintiff company and the damages for delay, and the damages for delay shall be 14% per annum from the day following the date of payment of insurance proceeds to the 30 days. The commercial bank's general loan interest rate for the period exceeding 30 days shall be based on the interest rate determined by the plaintiff company within the maximum of the overdue interest rate. The fact that the above overdue interest rate as of January 15, 1998 changed from 21% per annum to 27% per annum from the above overdue interest rate as of January 15, 1998 is as seen above. However, it is clear that the above large-to-land case was about the plaintiff company's obligation to the plaintiff company with respect to the above guarantee insurance contract, and it shall be interpreted that the above overdue interest rate shall be more than the maximum interest rate under the Interest Limitation Act as of December 16, 1996.
3. Conclusion
Therefore, the defendant is obligated to pay to the plaintiff 124,52,712 won with 12,081,371 won plus 12,634,083 won, plus 124,52,712 won with 124,52,712 won with 124,552,712 won with 124,71 won with 124,552,712 won with the above basic date from January 7, 1998 to January 14, 1998, with 21% interest rate modified pursuant to the above agreement, and 25% interest rate with 25% interest rate with 124,52,712 won with 12,081,371 won with 12,081,371 won with the above remaining insurance proceeds paid from the above basic date. Thus, the plaintiff's claim of this case is justified within the above recognition scope, and
Judges private staff;