[2] Whether the prior right to indemnity and the right to ex post facto indemnity of a trustee guarantor are separate independent rights that differ from the cause of occurrence and differ from the legal nature (affirmative), and whether the prior right to indemnity is extinguished after the right to ex post facto indemnity arises (negative)

[3] Whether a set-off against an automatic claim against the principal obligor by the trustee as to the principal obligor is allowed (negative in principle)

[4] Requirements for a garnishee subject to an order of seizure of a claim to set-off against the execution creditor in a case where the garnishee holds a counterclaim against the seizure debtor, and whether such a legal principle applies to a case where the garnishee and the person who is the third debtor and the guaranteed debt, who are subject to an order of seizure, repay the guaranteed debt after the seizure, thereby extinguishing the defense of the claim for security:

[5] Requirements for a set-off against the execution creditor where the garnishee has a prior right to demand a reimbursement against the seizure debtor

[2] The prior right to indemnity and the right to follow-up indemnity of the trustee guarantor have common nature that share the ultimate purpose and social utility. However, the right to follow-up indemnity 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 prior right to indemnity is a separate independent right that differs from the cause of occurrence, such as occurrence of a specific fact, and differs from the legal nature. Thus, the prior right to indemnity even after the occurrence of the right to follow-up indemnity is not extinguished, and the prior right to claim after the occurrence of the right to follow-up indemnity shall continue to exist, but the other party

[3] If a set-off of a claim bearing a right of defense is allowed with an automatic claim as a set-off, such set-off is a result of the other party's loss of the other party's opportunity to exercise the right of defense 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 of collateral security under Article 443 of the Civil Act is attached to the right of defense, set-off

[4] In order to oppose an execution creditor by a set-off in cases where the garnishee subject to an order of seizure of a claim has a counterclaim against the execution creditor, if both claims opposing at the time the seizure takes effect are either set-off or are not due at the time of the occurrence of the seizure, such claim shall take place at the same time as or higher than the due date of the seizure claim. Such a legal principle is reasonable to deem that the defense of the claim for security is extinguished by the person who is the third obligor and the guaranteed debtor who are subject to an order of seizure by repaying the guaranteed obligation after the seizure, and then the claim for security is set-off by the prior right of reimbursement acquired before the seizure against the seizure debtor.

[5] Ultimately, in order to set up a set-off against an execution creditor in cases where a garnishee has a prior right to demand a reimbursement against an execution creditor, the right to demand a reimbursement attached to the prior right to demand a reimbursement at the time the seizure takes effect shall be extinguished, and in cases where the prior right to demand a reimbursement is in set-off or the claim subject to a seizure is still attached to the prior right to demand a reimbursement in accordance with the prior right to demand a reimbursement at the time of seizure, the time when set-off through the prior right to demand a reimbursement is possible

1. As to the allegation of set-off based on the right to demand reimbursement based on the assumption of obligation with immunity

A. In a case where a person who has pledged his/her property mortgaged on another's property in order to secure another's obligation, fails to obtain a right to indemnity against the debtor (Article 370 and Article 341 of the Civil Act). However, the term "performance of an obligation," which is the requirement for the acquisition of the right to indemnity, means the realization of performance, which is the content of an obligation, and thus, the obligation is extinguished by the achievement of its purpose. Thus, even if the existing obligation is transferred from the existing obligor at the time of acquisition, and the existing obligation is not extinguished without the effect of extinguishing the existing obligation, it cannot be deemed as a case where the existing obligation is discharged even if the existing obligor is discharged from the obligation, barring special circumstances such as the fact that the existing obligor agreed to provide a certain benefit to the person who has pledged his/her property to the surety in return for the assumption of an obligation, the surety cannot be deemed as having the right to indemnity, etc. against the existing obligor.

B. In the same purport, the judgment of the court below which held that the Defendant, a person who has pledged his/her property to secure another’s obligation, is not entitled to exercise the right to indemnity against the Chungcheong Korean Rice Association only with the discharge of the obligation of the Chungcheong Korean Rice Agricultural Cooperatives (hereinafter referred to as the “ Chungcheong Korean Rice Association”), is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal principles on

2. As to the allegation of set-off against loans claims with automatic claims

A. On March 28, 2012, the lower court determined that the Defendant was insufficient to recognize that the Defendant lent the said money to the Chungcheong rice Association on the sole basis of the Defendant’s transfer of KRW 50 million to Nonparty 1 on March 28, 2012, and the transfer of KRW 45 million by Nonparty 1 to the Chungcheong rice Association on the same day, and that there was insufficient evidence to acknowledge otherwise.

B. Examining the reasoning of the lower judgment in light of the relevant legal principles and records, the lower court’s aforementioned determination is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the

3. As to the allegation of offsetting against the automatic claim for reimbursement by the joint and several sureties

A. (1) Although the right to prior reimbursement and the right to follow-up reimbursement of the trustee guarantor have common nature that share the same common purpose with their ultimate purpose and social utility, the right to follow-up reimbursement is generated by the fact that the guarantor extinguished his/her obligation by means of 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, such as occurrence of a specific fact, and differs from the legal nature (see Supreme Court Decision 91Da37553 delivered on September 25, 192, etc.). Since the right to follow-up reimbursement is a separate independent right that differs from the legal nature (see Supreme Court Decision 91Da37553 delivered on September 25, 192, etc.), even after the right to follow

(2) If a set-off of a claim bearing a right of defense is allowed with an automatic claim as a set-off, such set-off may result in the other party’s loss of the other party’s opportunity to exercise the right of defense by either of the set-offs. 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 of collateral security under Article 443 of the Civil Act is attached with a defense, set-off against the automatic claim cannot be permitted as a matter of principle (see Supreme Court Decision 2001Da81245, May 28, 2004, etc.).

(3) In order for a garnishee subject to an order of seizure to set-off against an execution creditor in cases where the garnishee holds a counterclaim against the seizure obligor, if both opposing claims are either set-off at the time of the effectiveness of the seizure, or if the maturity of the opposite claim (i.e., an automatic claim) at that time has not yet arrived, such claim shall arrive at the same time as or earlier than the maturity of the claims subject to seizure (see, e.g., Supreme Court en banc Decision 201Da45521, Feb. 16, 2012). Such legal doctrine applies to cases where the garnishee and the guarantee obligor subject to the order of seizure extinguishs a defense right of the claim for security by paying the guaranteed obligation after the seizure, and then, to set-off the claim subject to seizure with the prior right of indemnity acquired before the seizure against the seizure obligor.

(4) Ultimately, in order to set up a set-off against the execution creditor in cases where the garnishee has a prior right to demand a reimbursement against the garnishee, ① the prior right to demand a reimbursement attached to the prior right to demand a reimbursement at the time the seizure takes effect is extinguished, and ② the prior right to demand a reimbursement and the seized claim are in set-off, or ② the prior right to demand a reimbursement is still attached to the prior right to demand a reimbursement at the time of seizure, etc., when set-off through the prior right to demand a reimbursement becomes possible due to the third obligor’s act

B. The lower court determined that, after the Defendant’s joint and several debt guarantee under the instant agreement against Nonparty 2, Nonparty 2 acquired the instant prior right to reimbursement against the Dainam Rice Association pursuant to Article 442(1)4 of the Civil Act on April 19, 2013 due to the due date for the Defendant’s joint and several debt guarantee obligation, which occurred on April 19, 2013, but the Defendant paid to Nonparty 2 the amount of KRW 110 million and extinguished the right to reimbursement attached to the instant prior right to reimbursement within the said scope as of September 29, 2016, it is apparent that the instant seizure and collection order became effective after November 23, 2015, and that the period for the repayment of the instant unjust enrichment claim, which is the passive claim that the Defendant intended to set off the instant prior right to reimbursement, did not have arrived at the expiration of the right to reimbursement of unjust enrichment claim and the right to reimbursement of unjust enrichment claim of this case, which became final and conclusive after the instant seizure and collection order of this case.

C. Examining the reasoning of the lower judgment in light of the aforementioned legal principles, the said determination by the lower court is justifiable, and contrary to what is alleged in the grounds of appeal, there were no errors by misapprehending the legal doctrine regarding the prior right to indemnity

The Supreme Court precedents cited in the grounds of appeal are inappropriate to be invoked in this case, unlike the case.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kwon Soon-il (Presiding Justice)