2. The costs of appeal shall be borne by the Defendant.

The defendant shall pay to the plaintiff 144,186,360 won with 5% interest per annum from November 24, 2015 to the service date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

2. Purport of appeal

The part against the defendant in the judgment of the first instance is revoked, and the plaintiff's claim corresponding to the revocation is dismissed.

The reasoning of the judgment of this court is as follows: (a) the third party 15 of the judgment of the court of first instance (hereinafter “the collection order of this case”) “(hereinafter “the instant collection order”)” refers to “the seizure and collection order of this case”; and (b) the third party 6th party 6 of the judgment of the court of first instance “○○○” refers to “△△△△△△△△△”, respectively; and (c) except adding the following judgment as to the part on which the Plaintiff disputed as the grounds for appeal, the reasoning of the judgment of the court of first instance is stated in the reasoning of the judgment of the court

2. Determination on the grounds for appeal

A. Determination on the defense of set-off based on the right to demand reimbursement based on the assumption of an obligation with immunity

On May 6, 2015, the Defendant, as a surety, took over as a discharge the secured obligation of each collateral established on the real estate held at the time of the real estate auction in the position of the Chungcheongnam-Nam Korean Rice Association, and the real estate held at the time of the real estate auction, with the same effect as the repayment of the obligation in that the obligation is exempted from the obligor. As such, the Defendant acquired the right of ex post facto reimbursement against the Dainam Rice Association through analogical application of Article 370, 341 or 441 of the Civil Act, the Defendant asserted that the said right of ex post facto reimbursement is offset against the claim for return

In accordance with Articles 370 and 341 of the Civil Act, when a person who has pledged his/her property to secure another's property has repaid his/her obligation or has lost his/her ownership as a result of the execution of mortgage, he/she shall obtain the right to indemnity against the debtor. In this case, the term "performance of obligation" means the realization of performance, which is the content of the obligation, and the performance of obligation is extinguished by the achievement of the purpose of the obligation. However, unlike a novation where the obligation with the obligation to be discharged is established at the same time as a new obligation without identity and at the same time, the obligation to be discharged is a contract with the purpose of transferring the existing obligation to a third person, while maintaining the identity of the existing obligation, and there is no effect of extinguishing the obligation practically. Accordingly, the obligation to be discharged cannot be the same as the performance of

Meanwhile, even though the assumption of an obligation with respect to a surety who has pledged his/her property to secure another’s obligation terminates the obligor’s obligation, it cannot be deemed that an underwriter who has pledged his/her property to secure another’s obligation acquires the right to indemnity against the obligor pursuant to Article 370 and Article 341 of the Civil Act or Article 441 of the Civil Act, which provides for the right to indemnity of the obligor. As a result of the effect of the assumption of an obligation with respect to the obligation, the existing obligor does not bear the obligee’s obligation. In this case, the obligor’s discharge of an obligation is based on a contract with respect to the assumption of obligation, which is the basis of the right to indemnity prescribed in the Civil Act, and is not attributable to the repayment of the principal obligation by the surety’s actual contribution to the property. However, even though the underwriter increases damages through the assumption of an obligation with respect to the obligation, this is also possible to offset damages arising from the assumption of obligation by establishing consideration between the obligee, obligor, and underwriter. As such, if it is determined by the agreement between the obligor and underwriter without consideration.

After all, the defendant's defense is based on an independent opinion that a surety's property to secure another's obligation can exercise the right to indemnity against the debtor only with the discharge of the existing debtor's obligation.

B. Determination as to the defense of offsetting the loan claims with automatic credit

The Defendant, on March 28, 2012, lent KRW 50 million to the Dainam Rice Cooperatives to the said Dainam Rice Cooperatives. As such, the Defendant asserted that the loans to the said Dainam Rice Cooperatives are offset against the instant claim for return of unjust enrichment.

According to the statement Nos. 6-1 and 2-2, the Defendant transferred KRW 50 million to Nonparty 1 on March 28, 2012, and on the same day, Nonparty 1 transferred KRW 45 million to the Chungcheongnamnam National Rice Association. However, the fact that the above recognition alone is insufficient to recognize that the Defendant lent the above money to the Chungcheong National Association, and the Defendant’s written confirmation (Evidence 17) that the Defendant lent the above KRW 50 million to the Chungcheong National Rice Association is difficult to recognize, and there is no other evidence to acknowledge it.

Therefore, the defendant's above defense is not accepted.

C. Determination on the ground for offset against the automatic claim of the joint and several sureties’s right to indemnity

1) Relevant legal principles

A) The right to prior reimbursement and the right to follow-up reimbursement of the trustee guarantor have common nature that share the ultimate purpose and social utility. However, the right to follow-up reimbursement is arising from the fact that the guarantor extinguished his/her obligation with his/her contribution, such as reimbursement on behalf of the debtor, and the right to follow-up reimbursement is a separate independent right that differs from the cause of occurrence and differs from the legal nature (see Supreme Court Decision 91Da37553 delivered on September 25, 1992). The right to follow-up reimbursement remains together after the occurrence of the right to follow-up reimbursement.

B) If a set-off is allowed for a claim bearing a defense right as an automatic claim to which another claim is attached, such set-off would result in the other party's loss of the other party's opportunity to exercise a defense right by either party's declaration of intent of the set-off. Therefore, such set-off cannot be permitted. In particular, as the right of prior reimbursement under Article 442 of the Civil Act, in which the trustee guarantor holds against the principal obligor, as long as the right to claim a security under Article 443 of the Civil Act is attached as the right to defense is not permissible as a matter of principle (see Supreme Court Decision 2001Da81245, May 28, 2004, etc.). In such a case, the base point at which it is determined whether a set-off is not allowed as a defense right to claim a security in a prior right to claim a security should be viewed as the time when the other party's declaration of intent of offset is made in principle in order to guarantee the other party

C) However, it should be deemed that a set-off is different in cases where a garnishee who is subject to an order of prohibition of payment such as an order of seizure intends to offset the obligor’s claim with the right to reimbursement. Article 498 of the Civil Act provides that “The garnishee who is subject to an order of prohibition of payment cannot set up against the obligee who has requested an order of set-off with the obligation acquired thereafter.” In light of the purport of the above provision, the purpose and function of the set-off system, the current interests of the relevant parties, etc., in cases where a garnishee who is subject to an order of seizure or provisional seizure (hereinafter referred to as “order of seizure”) has an opposing claim against the obligor, it is unreasonable to view that the third obligor still has the right to reimbursement prior to the obligor’s claim of set-off and the right to reimbursement prior to the expiration of the obligor’s right of reimbursement which became effective due to the occurrence of the obligee’s right to reimbursement prior to the time of seizure (see Supreme Court en banc Decision 201Da4521, Feb. 16, 201201).

2) The assertion and judgment

A) The assertion

The defendant has jointly and severally guaranteed the obligation of the Chungcheong rice association against the non-party 2, and the defendant has asserted that the obligation of the Chungcheong rice association against the non-party 2 is offset against the claim for return of unjust enrichment in this case by the automatic claim for reimbursement against the Chungcheong rice association as the entrusted guarantor.

B) Occurrence of Preliminary Indemnity

을 제12 내지 15, 16, 21호증의 각 기재, 이 법원에 현저한 사실 및 변론 전체의 취지를 종합하면 충남우리쌀조합이 2011. 11월경 서부농업협동조합(이하 ‘서부농협’이라 한다)과 사이에 서부농협으로부터 친환경 벼 수곡수매자금 25억 원을 지원받으면서, 충남우리쌀 조합원들이 생산한 친환경 벼를 서부농협이 수매하고, 충남우리쌀조합이 판로를 확보하여 위 벼를 전량 인수하기로 하는 약정을 체결하고, 피고를 포함한 충남우리쌀조합 임원인 소외 1, 소외 3, 소외 4, 소외 5, 소외 6, 소외 7, 소외 8, 소외 9, 소외 10, 소외 11(이하 피고를 포함하여 ‘조합 임원들’이라 한다)이 충남우리쌀조합의 인수채무를 연대보증한 사실, 소외 2는 2011. 11. 25.부터 서부농협이 충남우리쌀조합원들로부터 수매한 친환경 벼를 보관하여 왔는데, 충남우리쌀조합이 위 벼를 전량 인수하지 못하자, 2012. 12. 18. 1,726,000,000원, 2012. 12. 31. 605,350,643원 합계 2,331,350,643원 상당의 위 벼 인수대금을 충남우리쌀조합 대신 서부농협에 지급한 사실, 소외 2는 위 대금 회수를 위하여 2012. 12. 27. 충남우리쌀조합과 사이에 ① 충남우리쌀조합이 2012. 12. 27.부터 2013. 2. 28.까지 소외 2에게 위 인수대금 2,331,350,643원을 지급하고, 위 벼를 인수하여야 하고, ② 만약 충남우리쌀조합이 위 기간 내에 인수대금을 입금하지 않고, 위 벼를 인수하지 않을 경우 원고는 위 벼를 임의처분할 수 있으며, ③ 원고가 위 임의처분으로 얻은 대가가 위 약정 인수대금에 미달할 경우 그 차액을 충남우리쌀조합이 변제할 것을 내용으로 하는 ‘2011년산 친환경 벼 매매계약’(이하 ‘이 사건 약정’이라 한다)을 체결한 사실, 조합 임원들은 2013. 1. 3. 충남우리쌀조합의 이 사건 약정상 채무를 연대보증한 사실, 소외 2는 충남우리쌀조합이 위 계약기간 내에 인수대금을 지급하지 않음을 이유로 2013. 4. 19. 농업회사법인 주식회사 새들만에 위 벼를 1,380,691,043원에 매도한 사실, 소외 2가 2013. 5. 29. 충남우리쌀조합 및 조합 임원들을 상대로 약정 인수대금 2,331,350,643원에서 위 처분대금 1,380,691,043원을 공제한 나머지 950,659,600원 상당의 손해배상을 구하는 소를 제기하였고, 2013. 11. 7. 대전지방법원 홍성지원 2013가합871호로 청구 일부인용 취지의 판결 을 선고받은 사실, 위 판결에 대해 소외 2와 조합 임원들 모두 항소를 제기하여 2015. 2. 6. 대전고등법원 2013나12424호 로 소외 2의 청구를 추가로 인용하는 판결이 선고되고, 2015. 2. 24. 위 판결이 확정된 사실, 조합 임원들 중 피고, 소외 6, 소외 12, 소외 8, 소외 9, 소외 10, 소외 11 등 7명은 2015. 9월 하순경 소외 2와 사이에 위 확정판결에 기한 연대보증채무를 770,000,000원으로 감축하고, 위 7명이 소외 2에게 각 110,000,000원씩 합계 770,000,000원을 지급하기로 합의한 사실, 피고가 위 합의에 따라 2016. 9. 29. 소외 2가 지정한 소외 13 명의 계좌로 1억 2,000만 원(= 피고 몫의 합의금 1억 1,000만 원 + 조합 임원들 중 1명인 소외 10의 합의금 중 일부 대위변제 명목 1,000만 원)을 이체한 사실을 인정할 수 있다.

According to the above facts, the defendant's joint and several obligations under the instant agreement against the non-party 2 of the Chungcheongnamnam Rice Association were jointly and severally guaranteed by the non-party 2, and on April 19, 2013, when the period during which the defendant's joint and several liability owed to the new corporation, the non-party 2 voluntarily disposed of the above rice reaches the due date of the joint and several liability owed by the non-party 2, thereby acquiring the prior right to indemnity against the Chungcheongnamnam Rice Association (hereinafter "the prior right to indemnity of this case").

C) Whether a set-off may be made with an automatic claim for reimbursement of the instant case

(1) The defendant asserts to the effect that, in the case of this case where the defendant, after he discharged part of the principal debt of this case against the non-party 2 of the Chungcheongnam National Rice Association, set-off with the right to demand a prior reimbursement within the scope of discharge, the defense with the right to demand a prior reimbursement of damages is valid since there is no reason to exercise the right to demand a security any further from the ex post facto point of view.

On September 29, 2016, the fact that the Defendant transferred KRW 110 million to Nonparty 13, who was designated by Nonparty 2, for the repayment of his joint and several liability. Accordingly, the primary obligation against Nonparty 2 was discharged within the above scope. Thus, at least up to KRW 110 million, the Defendant already discharged the primary obligation of the Dainam Rice Association. Thus, the Defendant’s right to demand a security against the Defendant of the Chungcheongnamnam Rice Association should be deemed extinguished. The guarantor’s right to demand a prior reimbursement of the amount of the surety’s prior reimbursement of the amount of the surety’s prior reimbursement of the amount of the surety’s obligation is at risk of re-payment of the surety’s obligation. Thus, the primary obligor’s right to demand a security is protected by allowing the obligee to demand a prior reimbursement of the amount of the surety’s obligation. If the guarantor already discharged the primary obligor, the obligor’s right to demand a prior reimbursement of KRW 100,000,000,000,000 to the extent of the primary obligor’s right to demand a prior reimbursement.

However, as seen above, the time when the Defendant repaid Nonparty 2 the amounting to KRW 110 million to Nonparty 2 and extinguished the claim for the security attached to the instant prior right to reimbursement within the said scope is clear on September 29, 2016, which was after November 23, 2015 when the effect of the instant seizure and collection order became effective. Moreover, as seen earlier, the Defendant’s repayment period of the instant claim for the return of unjust enrichment, which is the opposite claim to offset the instant prior right to reimbursement, was reached on December 27, 2013, prior to the effective date of the instant seizure and collection order, at the latest. In light of the aforementioned legal principles, in light of the foregoing, it is not permissible to establish the instant collection order and set off the claim for the return of unjust enrichment after the instant seizure and collection order was partially extinguished.

(2) On the other hand, the defendant alleged to the effect that he implicitly renounced the right to demand a security in advance by the Chungcheong rice Cooperatives, but there is no evidence supporting that the Chungcheong rice Cooperatives implicitly renounced the right to defense as to the right to demand a prior reimbursement of this case.

D) Sub-committee

Ultimately, the defendant's defense is without merit.

3. Conclusion

Therefore, the judgment of the court of first instance is just, and the defendant's appeal of this case is dismissed.

Judges corrected (Presiding Judge)