[대여금청구사건][고집1976민(1),67]
Cases recognized as joint and several sureties
If the husband has indicated that he will dispose of the land and building under his own name with respect to his obligation and pay the above obligation, he shall be deemed to have jointly and severally guaranteed the obligation.
Articles 428 and 437 of the Civil Act
Plaintiff
Defendant 1 and one other
Cheongju District Court of the first instance (Supreme Court Decision 75Gahap2)
The original judgment shall be revoked.
The Defendants shall jointly and severally pay to the Plaintiff an amount of KRW 740,00 and an amount of KRW 360 percent per annum from January 26, 1971 to August 2, 1973, at the rate of 5 percent per annum, from August 3, 1973 to full payment.
All the costs of lawsuit shall be borne by the defendants in the first and second instances.
Paragraph (2) may be prejudicial to the collection.
The same shall apply to the order.
On January 26, 1971, the Plaintiff lent 740,000 won interest rate of 5% per month to Defendant 1 on January 25, 1971, and the fact that the repayment period has been extended on September 1, 1972 after having been set as the repayment period had been extended on January 25, 1972 between the parties. In full view of the purport of the pleading in the statement No. 2 (written consent) No. 2 (written consent) without dispute between the parties, Defendant 2, the husband of Defendant 1, expressed that Defendant 1 would dispose of the real estate (site and building) under his/her own name as to the obligation of Defendant 1 on June 23, 1973, and thus, it can be recognized that the joint and several surety of the obligation
The Defendants, even before early February 1974, did not have the ability to liquidate the debt amounting to KRW 11,704,00 in total to Nonparty 1 and 17 in addition to the Plaintiff, even in early February 1974, and therefore, creditors including the Plaintiff and the Defendants were not capable of settling the debt amounting to KRW 11,70,00. Thus, on February 9, 199, the creditors including the Plaintiff, and the Defendants were to purchase the above real estate (number omitted) owned by Defendant 2, 101 square meters, 101 square meters, 205 square meters, 1, 205 square meters, 1,5 square meters, 1,5 square meters, 1,000, 8 square meters, and 1,000 in total, transferred the proceeds to all creditors including the Committee, and it is difficult to conclude that the testimony of Nonparty 1 based on the special agreement with the Plaintiff on the liquidation of the above liquidation of the Health Unit.
Therefore, the defendants are jointly and severally liable to pay the above loans and the interest limit amount at the rate of 36% per annum from January 26, 1971 to August 2, 1973, and 25% per annum from August 3, 1972 to the full payment rate.
Unlike this conclusion, the original judgment dismissing the Plaintiff’s claim is unfair, so it is revoked, ordering the Defendants to pay the above amount, ordering the Defendants to pay the litigation cost at all the first and second instances, and it is so decided as per Disposition by applying Article 199 of the Civil Procedure Act to a provisional execution declaration.
Judges Shin Jong-ho (Presiding Judge)